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A    TREATISE 


JURISDICTION  OF  COURTS. 

IN    TWO   VOLUMES, 

EACH    VOLUME    COMPLETE    IN    ITSELF. 


By  J.  C.  WELLS, 

Author  op  "Res  Adjudicata  ^nd  Stare  Decisis;"   "Separate  Property  o» 

Married  Women;"  "Questions  of  Law  and  Fact,  Instructions  to 

Juries  and  Bills  op  Exception;"   "Magna  Charta;"  Etc. 


VOLUME   I, 

COKTAINING 

PART    I.     Elesientary  Principles. 

PART  II.     Specific  Original  Jubisdictioks. 


SAINT  PAUL: 

"WEST    PUBLISHING    COMPANY, 

1880. 


T 


COPYT?TGHT   1880. 
WEST  PUBLISHING  COMPANY. 


PREFACE. 


This  work  is  offered  to  the  profession  mirier  tlie  Ijelief  that  a 
treatise  on  the  subject  of  jurisdiction  has  long  l)een  a  desideratum  ; 
since,  while  the  subject  enters  into  everything,  there  is  no  distinct 
treatment  of  it  available.  Four  years  ago  I  undertook  the  task 
wbieh  is  now  embodied  herein.  What  degree  of  merit  may  attacli  to 
tlie  i)erformauce  of  it  is  not  for  me  to  say.  I  am  strongly  inducetl  to 
hoi)e  that  it  will  be  found  acceptable,  from  the  very  llattering  reviews 
whicli  my  former  works  have  called  forth;  and  es])ecially  from  the 
late  exi)licit  commendation  of  Ees  Adjudicata.  by  the  Supreme  Court 
of  the  United  States,  in  an  important  case,  wherein  my  remarks  were 
cited  as  authority.  Almost  witlioiit  exception  the  critics  have  treated 
me  with  very  gratifying  kindness  and  indulgence;  for  wliicli  I  here 
-ex  ]  tress  my  heart -felt  gratitiide. 

Owing  to  the  leiigtli  of  time  tlie  manuscript  was  in  liniid  jit'ter  the 
first  draft  Avas  pre})ared,  to  my  desire  to  have  tlie  latest  cases  availa- 
ble inserted,  and  to  the  great  laljor  whicli  would  have  been  involved 
in  rewriting,  there  are  more  foot-notes  contained  in  the  worlv  than  I 
approve.  These  notes  consist  mainly  of  the  late  cases,  which,  how- 
ever, are  mostly  confirmatory  and  explanatory  of  the  doctrines  stated 
in  the  text  originally.  Lengthened  foot-notes  are  very  undesirable  in 
ii  legal  text-book,  I  think,  since  they  tend  to  divide  or  chop  up  the 
discussion  of  the  topics  presented.  My  idea  is,  that,  as  a  general 
nde,  Avhatever,  bedsides  the  mere  references,  ought  to  be  wrought  into 
a  book  at  all,  should  be  given  in  the  text. 

I  have  not  hesitated  to  cite  the  exact  language  of  the  courts  when- 
ever I  thought  a  Avell-considered  quotation  would  add  to  the  clear- 
ness of  the  explanations  of  the  subjects  treated. 

To  avoid  quotations,  professedly,  is,  it  seems  to  me,  the  very 
affectation  of  originality;  besides  involving  a  very  uncomplimentary 
contempt  for  the  reasoning  of  the  courts,  if  not  for  the  courts  them- 
selves. The  point  to  be  avoided  is  stulhng  a  book  with  prolix  or 
irrelevant  passages.  .  The  very  language  of  the  courts  must,  of  neces- 
sitv,  be  more  satisfactory  to  lawyers  who  have  not  access  to  extensive 

(iii) 


IV  PJIKFACK. 

liliijiiifs,  th.iii  tho  mere  stateniont  by  an  antlior  of  what  the  cases 
ti-arli.  Ami  i>()oti  writers — such  as  Story,  Cooley,  and  others — do  not 
hcsitato  lo  4note  freely  wlienever  it  answers  their  purpose,  whether 
in  ihe  text,  or  in  notes.  As  I  am  inclined  to  dispense  with  the  latter, 
my  quotations  mainly  appear  in  the  former. 

I  have  not  been  anxious  to  cite  all  merely  confirmatory  opinions; 
lint  have  followed  the  example  set  by  Greenleaf  on  Evideiioe,  and  by 
other  standard  works,  in  this  particular.  I  have  endeavored,  how- 
ever, earefuUy  to  note  all  principles,  exceptions,  modifications,  and 
especially  all  contradictions,  among  the  authorities.  It  wtfrild  be 
pedantic  in  the  highest  degree  to  fiing  down  a  whole  page  of  refer- 
ences to  establish  the  universally  conceded  principle  that  consent 
cannot  confer  jurisdiction  as  to  subject-matter;  and  so  of  others. 

And,  as  a  general  rule,  what  is  termed  "clustering  cases  around 
a  great  leading  principle,"  may  sound  very  learned,  but  it  merely 
amounts  to  this — that  tlie  individuality  of  the  cases  is  ignored. 
Each  case  is  likely  to  have  some  distinctive  feature,  which  should  be 
indicated,  although  sometimes  merely  by  a  w^ord  or  phrase.  AVhere 
a  handful  of  cases  is  thrown  down  together,  it  will  generally  be 
found  the  majority  of  them  mean  absolutely  nothing  where  they 
stand,  and  do  not  even  directly  support  the  point  at  which  they  are 
aimed.  A  very  few  cases  will  suffice  to  sustain  an  uncontradicted 
point;  and  if  there  is  any  variance  or  peculiarity,  this  should  be  dis. 
tinctly  noted — which  cannot  be  done  under  the  practice  of  huddling 
cases  together  in  large  mobs  collected  with  but  a  vague  general  pur- 
pose, and  without  any  specific  definite  end. 

The  present  volume  is  entirely  distinct  and  independent  from  the 
contemplated  second  volume;  so  that  attorneys  who  only  wish  one 
volume  will  not  be  compelled  to  purchase  both  in  order  to  have  a 
complete  book,  so  far  as  its  scope  extends. 

I  do  not  know  that  I  need  say  anything  more  here.  I  await  the 
verdict. 


CONTJilNTS. 


PART  L-ELEMENTARY  rRIXCIPLES. 


CHAPTER  I. 

JURISDICTION    DEFINED. 

Page. 

1.  Etymology  of  the  word  "Jurisdiction" 1 

2.  Limits  of  j  urisdiction 1 

3.  Definition  by  tlie  United  States  supi-eme  court 2 

4.  flaintitf 's  riglit  confers  tlie  jurisdiction 2 

6.  Distinction  between  judicial  and  ministerial  acts 3 

€.  Judging  the  constitutionality  of  statutes — justices  of  the  peace, 

etc 3 

CHAPTER  n. 

JUKISDICTIONAL   DISTINCTIONS. 

7.  Jurisdiction  in  personam  and  in  rem 7 

8.  Law  and  equity 8 

9.  Civil  actions  and  criminal,  military  and  ecclesiastical 8 

10.  Superior  and  inferior  jurisdiction 8 

11.  Concurrent  and  exclusive  j  urisdiction b 

12.  Original  and  appellate  jurisdiction— direct  and  incidental  juris- 

diction        9 

CHAPTER  HI. 

LEGATi   EFFECT   OF   ACTING   WITHOUT'  .JURISDICTION. 

13.  jSTo  opinion  to  be  given  without  jurisdiction 10 

14.  What  may  be  done  without  jurisdiction 1'^ 

15.  Legal  effect  of  acting  without  jurisdiction  explained il 

IC.  Example 11 

17.  Application  to  hdhatx  corpus  to  cotirts  martial  and  to  the  tran- 
scending of  the  limits  of  juri.sdictiou 12 

V 


vi  contp:nts. 

Page. 

f  IS.   Effect  of  subsoqiient  invostiHire  of  jurisdiction 12 

li".   Stair  (ieciKis  in  regard  to  jui'isdictional  questions 12 

20.  Foreign  courts ^^ 

CHAPTEE  IV. 

ILLECr.^L   COURTS. 

$21.  General  rule  as  to  unauthorized  courts    14 

2'2.  C'onfeileralo  courts ^^ 

2:{.  Doctrine  relating  thereto  in  Louisiana 16 

'M.   Xu  Ahibania  case  at  length 16 

25.  Provisional  courts  afterwards  declared  illegal — general  princi- 
ple as  to  the  confederate  courts 20 

CHAPTER  V. 

SITERIOR   OR    CtKNERAL    AND    INFERIOR    OR    LIMITED   JURISDICTION. 

^  20.    Distinction  not  readily  deliued 22 

27.  Bouvier's  definition 23 

2>*.  General  jurisdiction  limited  to  particular  subjects 23 

2'J.  t5lalui(jrj  innovations 24 

CHAPTER  VI. 

PRESUMPTIONS. 

}  30,  Presumptions  as  to  superior  courts  and  to  inferior  courts 26 

31.  ( 'las>ificatiou 26 

32.  What  is  presumed  as  to  .superior  courts 26 

33.  How  jurisdiction  of  a  superior  court  impeached 27 

34.  The  general  rule  of  presumption 27 

3.J.  How  it  is  limited  as  to  superior  courts 2S 

36.  1  low  limited  in  reference  to  the  mode  of  procedure 2& 

37.  Particidar  jurisdictional  facts  presumed r 28 

38.  Regularity  of  proceedings  presumed    29 

39.  Presumptions  conclusive  as  to  discretidn 29 

40.  Presumptions  adverse  as  to  limits  of  jurisdiction  of  inferior 

courts 29 

41.  Specific  facts  must  appear •  30 

42.  Examples 30 

43.  Powers  of  inferior  court  subject  to  a  strict  construction 31 

44.  Justification  of  ministerial  acts  under  proceedings  of  courts. ...  31 

45.  fjegislature  may  change  presumptions , 32 

4G.  Presumption  of  regularity  as  to  inferior  courts 32 

CHAPTER  Vn. 

CONSTITUTIONAL   LIMITATIONS. 

f  47.   Different  departments  of  government 33 

4fe,  Discretionary  acts  not  controllable 34 


CONTENTS.  Vii 

P;iSe. 

}  49.  Example  in  Missouri ;^5 

50.  No  waiver  allowed  by  executive  officer,  etc 37 

51.  Presumption  as  to  executive  action .38 

52.  Courts  will  interfere  in  personal  contests  for  a  state  office 38 

53.  Courts  cannot  compel  collection  of  public  revenue  by  the  execu- 

tive department 3<> 

54.  National  boundaries 39 

55.  Unconstitutional  laws 33 

CHAPTER  VIII. 

HOW   JURISDICTION    IS    INQUIRED    OF. 

f  56.  Axioms 41 

57.  Collateral  inquiries  as  to  jurisdiction 41 

58.  The  United  States  supreme  court  on  reviewins;  foreign  decisions  42 

59.  Courts  in  sister  states 43 

60.  .Jurisdiction  as  to  a  pending  case  in  another  court 44 

61.  .Judgment  of  inferior  courts  on  jurisdictional  facts 44 

62.  Courts  bound  to  inquire  as  to  jurisdictional  facts 44 

63.  Time  of  objecting 44 

64.  How  a  want  of  jurisdiction  may  be  taken  advantage  of 44 

65.  General  observation  a^  to  tests  of  jurisdiction 46 

CHAPTER  IX. 

SOURCES    OF    JURISDICTION   AS   TO    SUBJECTS. 

4  66.  Consent  cannot  confer  jurisdiction  of  subject-matter 47 

67.  Sources  :    (1)  Common  law,  (2)  Constitutions,  (3)  Statutes 52 

68.  Organization  of  courts  and  granting  juri.^diction "(2 

69.  Repealing  statutes 56 

70.  Statutor}'  authoritj'  to  l)e  strictly  pursued 58 

71.  Probate  powers  of  common  law  courts  statutory 59 

72.  Remarks  on  strict  construction 59 

CHAPTER  X. 

DEFEAT    OF    JURISDICTION. 

$  73.  Jurisdiction  of  superior  courts  only  taken  away  expressly  or  by 

necessary'  implications IM 

74.  Creating  new  courts  with  exclusive  juiisdiction li.} 

75.  liepeal  of  criminal  law c:! 

76.  EtTect  of  bankruptcy d-t 

77.  Effect  of  appeal (i4 

78.  Arbitration (i4 

79.  Effect  of  .siibseijuent  fact  occurring ()5 

80.  Giving  special  powers  does  not  oust  general  poweis 68 

81.  Example  of  subsequent  fact  in  lunafv  proceedings fiS 


Viii  CONTKNTS. 

CHAPTEE   XI. 

PAUTIES. 

Page. 

4  82.  "  Day  in  cnnit  "—notice 6i» 

83.  Summons '- 

S4.   Fraud  on  parly  defendant ''•^ 

}»5.  Parly  in  court  Ixmnd  to  talvO  notice  of  the  proceedings 7o 

S6.  Conferring  personal  jurisdiction  by  appearance 74 

87.  Non-residents '*' 

88.  Notice  as  to  non-residents " 

)*9.  Foreign  corporations 79 

90.  Ecjuily  jurisdiction  from  residence SO 

91.  Record  party  gives  the  jurisdiction 80 

92.  State  as  party 82 

93.  Consuls •  82 

94.  Indians 82 

97).  Non-resident  plaintiffs 83 

96.  Officers  of  U.  S.  government 83 

97.  Service  and  return  statutory 83 

CHAPTEE   XII. 

PARTIES    (continued) CONFEDERATE    SOLDIERS. 

f  98.  Judicial  results  of  the  civil  war 84 

CHAPTEE  XIII. 

JURISDICTION   DETERMINED   BY   VALUES. 

§     99.  Various  limitations 93 

100.  How'  limitation  by  value  is  estimated 93 

101.  Unbalanced  account 9.5 

102.  Remitting  excess 96 

103.  Consolidation  of  claims 96 

104.  Value  in  ejectment  suits 99 

10.5.  Ad  damnum  clause 100 

106.  Values  in  crimes  and  torts 100 

107.  No  waiver  as  to  jurisdiction  measured  by  value lul 

108.  Set-offs 102 

109.  Aggregating  claims  in  declaration 103 

110.  Various  mortgage  claims 103 

111.  Purchase  price  of  property  involved  is  not  the  standard 103 

CHAPTEE  XIV. 

VENUE. 

$  112.  Meaning  of  term  "Venue" 105 

113.  General  jurisdiction  of  state 105 


CONTENTS.  IX 

Pago. 

'f  114.  Suits  bet-ween  non-residents 108 

115.  Torts  committed  without  the  jurisdiction 110 

116.  Venue  in  regard  to  lunds 11-^ 

117.  Venue  in  regard  to  counties ll.'J 

118.  Process  in  another  couut v 11 ") 

119.  Jurisdiction  by  levy  on  land IJti 

120.  Venue  in  regard  to  boundaries 116 

-121.  Place  of  holding  court 117 

CHAPTEE  XV. 

CHANGE  OP  VENUE. 

$  122.  Transfer  of  cause  to  another  tribunal 118 

123.  Cause  for  change  of  venue — prejudice 11!) 

124.  Cause  of  action  arising  in  another  county 121 

125.  Convenience  of  witnesses 121 

126.  Must  be  in  accordance  to  statute 122 

127.  Discretion  of  the  court 122 

128.  Notice  to  change 124 

129.  Change  to  remote  county 124 

130.  Parties  to  application 125 

-131.  Provisional  courts 125 

CHAPTER  XVI. 

TEEMS    OP   COURT. 

i  132.  Must  he  as  prescribed  by  statute 126 

133.  What  is  a  compliance 127 

134.  Mistake  in  statute— discretion  of  judge 128 

135.  Extension  of  term 128 

136.  Change  by  statute — notice  to  parties 128 

137.  When  term  is  to  be  extended 128 

138.  Term  regarded  as  one  day 129 

139.  Effect  of  lapse  of  a  term  as  to  sureties  on  a  recognizance 129 

CHAPTER  XVII. 

INCIDENTAL    JURISDICTION. 

^  140.  In  general ISO 

141.  Regulation  of  practice 130 

142.  Publication  of  proceedings — power  to  prohibit 131 

143.  Amendments,  discretionary 131 

144.  Power  over  process  and  officers ].;.". 

145.  What  is  a  pending  suit 13.') 

146.  Hupplementnry  proceedings J.'iC 

147.  Over  lioats  in  navigable  waters l.",7 


X  CONTENTS. 

CHAPTEE  XVIII. 

INCIDENTAL  JURISDICTION  AS  TO  CHURCHES  AND  OTHER  VOLUNTARY 

SOCIETIES. 

Page. 

i   14s.  In  seneral 139 

l-iiK  A>  to  lodges 139 

150.  Ai'1  ion  against  secret  organizations,  etc. — boards  of  trade 141 

151.  Church  regulations 142 

152.  Forfeiture  of  jiroperty  in  church  by  members  seceding 14t> 

163.  Interference  with  church  affairs 14& 

CHAPTEE  XIX. 

EXCLUSIVE    AND   CONCURRENT    JURISDICTION. 

§  154.  In  general 148^ 

155.  Between  law  and  eciuity  courts 14& 

156.  General  principle 149 

157.  Same  rules  app]_v  as  to  concurrent  tliat  appl}'  to  separate  juris- 

dictions    Va^ 

158.  Application  of  the  rule 150 

159.  Conflict  of  jurisdiction — priority 151 

160.  llule  of  priority — limitations 152 

CHAPTEE   XX. 

SUMMARY    PROCEEDINGS. 

f  161.  Former  scope  of  such  i)rocecdings 155 

162.  Authority  must  be  strictly  pursued 155 

CHAPTEE  XXI. 

JUDGES. 

j  163.  Judicial  purity 157 

164.  Age — dejnrc  and  dc  facto  judges 15& 

165.  Kesidence 159 

16G.  Official  and  personal  bias 159 

167.  3Iinisterial  acts  which  do  not  disqualify IGO 

168.  Mere  partisan  feeling  not  a  disqualitication KiO 

169.  Having  acted  as  counsel 161 

170.  Kindred I(i2 

171.  Pecuniary  interest — fiduciary  positions — suretj- 163 

172.  Sunmiary  of  disqualifications — Buford  case 166 

173.  Procedure  in  case  of  disqualification 167 

174.  Suljstitution 168 

175.  Liiibiiity  of  judges  for  official  acts ] 69 

176.  Wilful  al)uses — forfeiture 172 


CONTENTS.  XI 

CHAPTER  XXII. 

CONTROL    OF    ATTORNEYS. 

Page. 
§  177.  Removal  from  the  bar 173 

CHAPTER  XXIII. 

CONTEMPTS. 

$  178.  Power  to  punish  for  contempts  essential 177 

179.  Nature  of  the  power 178 

180.  Nature  of  proceedings  in  contempt 181 

]^1.  Contempt  of  witness 182 

182.  Bringing  a  fictitious  suit IS-i 

18.3.  Quarreling  or  lighting 1>') 

184.  Extent  of  power  to  punish Is") 

185.  Attempt  to  obtain  opinion  when  there  is  no  real  controversy. .  isy^ 

186.  Client  not  answerable  for  contempt  of  attorney 1S() 

187.  Contempt  committed  by  a  court ]s7 

188.  Disobedience  of  orders  made  out  of  court 1^7 

189.  Contempts  by  not  paying  money 1^7 

190.  Violation  of  injunctions 188 

191.  Insolent  language  of  an  attorney  to  J.  P 188 

192.  Proceedings  not  retroactive 188 

193.  When  citation  to  show  cause  must  issue 189 

194.  Clearing  contempt 189 

195.  Remitting  sentence  l)y  pardon 190 

196.  Denial  of  right  to  litigate  to  one  in  contempt 190 

CHAPTER  XXIV. 

NEWSPAPER  CONTEMPTS. 
}  197    Indirect  contempts — general  rule  and  examples 191 


PART  II.-SPECIFIC  ORIGINAL  JURISDICTIONS. 


CHAPTER  I. 

THE   COMMON   LAW. 


}  198.  Explanation  of  the  common  law 203 

190.   Basis  of  jurisprudence 204 

200,  Modification  of  ilie  common  Jaw 207 


xii  CONTENTS. 

Paee. 
§  201.   Distinction  between  principles  !ind  rules 208 

202.  The  standard  of  judgment  herein 20;t 

203.  What  the  common  law  is 211 

204.  Examples  of  moditication 211 

205.  JSo  moditication  to  be  implied  from  a  statute 212 

206.  Effect  of  statutes  prescribing  remedies 212 

207.  Common  law  as  to  the  United  States  courts 213 

208.  Sources  of  knowledge  of  common  law — general  rules 213 

209.  Effect  of  a  want  of  early  precedents  in  this  country 216 

210.  Exemplifications  of  public  grants 210 

211.  Process  of  attachment 217 

212.  Remedies  in  United  States  courts 218 

213.  Offences  and  crimes 218 

214.  Felony  merging  private  wrongs 222 

CHAPTER  II. 

EQUITY. 

4  215.  Basis  of  equity  jurisdiction 223 

216.  Concurrent  jurisdiction 226 

217.  Preventing  multiplicity  of  suits 227 

218.  Equity  does  not  revise  legal  proceedings 230 

219.  Nor  supply  defences 231 

220.  When  legal  proceedings  may  be  set  aside 232 

221.  Erroneous  but  not  void  judgments  not  set  aside 234 

222.  Equity  will  not  revise  proceedings  of  mferior  courts 23-4 

223.  Equity  does  not  entertain  direct  suits  for  money,  nor  determine 

cases  involving  mere  legal  questions 234 

224.  Penalties  and  forfeitures   235 

225.  Election  cases 235 

226.  When  legal  rights  will  be  enforced 235 

227.  Doing  full  and  complete  ju.stice 23.'. 

228.  Equitable  conversions 236 

229.  Discretion  of  equity 236 

230.  Classitication  of  equitable  remedies — trusts 2'i7 

231.  Frauds 239 

232.  Cancellation  and  rescission , 240 

233.  Reformation 243 

234.  Specific  performance 246 

235.  Clearing  titles 248 

236.  Partnership — heirs 248 

237.  Suretyship 248 

238.  Ne  exeat  writs 248 

239.  Bills  of  discovery 249 

240.  Injunction. 249 


CONTENTS.  Xlll 

CHAPTER  III. 

ADMIRALTY. 

Page. 

j  241.  Admiralty  jurisdiction  explained 251 

242.  Di.stiuctiou  between  admiralty  and  conunon  law 2.')4 

243.  Extension  of  jurisdiction 254 

244.  How  jurisdiction  exercised 257 

245.  Wlien  jurisdiction  attaches 259 

24().  Ett'ect  of  state  statutes 259 

247.  Seamen'.s  wages 260 

248.  Conjoint  proceeding  in  pey^oiuain  and  in  rem 260 

249.  Ousting  jurisdiction  by  mixed  contract 20O 

250.  Vessel  partnership 262 

251.  Titles  to  sbips — mortgages 26:j 

252.  Contracts  for  building  ship.s — repairs 266 

253.  Furnishing  supplies 266 

254.  JIaritime  liens — maritime  contracts 267 

255.  Insurance,  etc 269 

256.  Salvage 269 

257.  Supervision  of  seamen's  contracts 271 

258.  Contracts  of  transportation 271 

259.  Lien  by  advancing  money  to  release  vessel  seized  by  marshal..  271 

260.  When  suit  may  be  brought  where  a  promissorv  note  has  lieen 

given 271 

261.  Distinction  between  vessel  and  cargo 272 

262.  Collision 272 

263.  Torts 272 

264.  Violat ions  of  revenue  laws 275 

265.  Felonies 275 

266.  Pirates 276 

267.  Admiralty  jurisdiction  as  to  foreigners 277 

268.  Prize  jurisdiction 279 

269.  Repairs  or  supplies  as  to  foreign  ships 281 

270.  Trusts — specific  performance 281 

CHAPTER  IV. 

PROBATE. 

f  271.  Nature  of  probate  jurisdiction 282 

272.  Authority  mainly  statutory 283 

273.  Relation  with  courts  of  chancery 283 

274.  Collateral  questioning  of  proceedings 255 

275.  Domicile  determines  jurisdiction 288 

276.  VV  ills 289 

277.  Appointing  power 290 

278.  Power  of  control  and  removal 291 

279.  Assets  of  estates 292 


XIV  CONTENTS. 

Page. 

4  280.  Claims  aguinst  estates 292 

281.  Partition  and  dower , 294 

282.  Sale  of  laud  to  pay  debts 294 

283.  Binding  oul  orphans 296 

284.  Xo  power  to  sell  homestead 296 

285.  Deciding  on  validit)'  of  bequests — trusts 296 

286.  Partnership  accounts 29i; 

287.  Set-offs 296 

288.  Situs  of  i)ersonal  property 297 

289.  Limitation  of  control  of  administrators,  etc 297 

290.  Probate  of  wills  devising  real  estate 297 

291.  Spccitic  performance 297 

292.  Matters  of  fraud 298 

293.  Changes  of  venue ' . . .  298 

294.  Statutes  of  limitation 29s 

295.  Administrator  of  an  administrator 298 

'296.  Rents  for  real  estate 298 

297.  Habeas  corpus  writs 298 

298.  Contempts 298 

299.  Settlements  and  distributions 299 

300.  Same — limitation  of  jurisdiction 300 

301.  Disqualitication  of  probate  judge 301 

302.  Terms  of  court 301 

CHAPTER  V. 

CRIMES. 

4  303.  General  remarks 302 

304.  Source  of  criminal  jurisdiction  as  to  United  States  courts 303 

305.  Statutory  jurisdiction  of  United  States  courts 304 

306.  Abuse  of  criminal  law 306 

307.  Res  adjitdicafa  in  criminal  prosecutions — explanation  of  "  twice 

in  jeopardy" 307 

308.  Arrest  by  private  citizens .308 

309.  Punishiuent  of  attempts 312 

310.  'Wrongful  intent 312 

311.  Effect  of  a  pardon 314 

312.  Venue 314 

313.  Extra-territorial  and  continuing  offences 315 

314.  Illegal  voting  beyond  the  state 321 

315.  General  responsibility  of  citizens  for  acts  done  abroad ;j23 

316.  Explanation  of  this  by  Christian ri/,  J 323 

317.  Offences  by  means  of  agencies 32") 

318.  Offences  in  foreign  jurisdictions 328 

319.  Offences  in  different  count  ies 329 

320.  Distinct  constitutent  acts  in  different  states  or  counties 329 

321.  Foreigners  committing  offences  within  the  jurisdiction 3.;;; 

322.  Extradition , 33.J 


CONTENTS.  XV 

CHAPTER  VI. 

BANKRUPTCY. 

PilCC 

i  323.  Original  jurisdiction  in  baukruplcy .'!-4h 

324.   Disability  of  district  judge 34 1 

32.5.  Exercise  of  jurisdiction  as  to  Icrms 341 

326.  Appearance ;i4 1 

327.  Pending  suits  in  otlicr  courts 34,; 

328.  Assignee  as  party  in  other  courts 342 

329.  Eft'ect  of  bankrupt  laws  on  state  insolvent  laws .'Uii 

330.  Acts  of  bankruptcy 34." 

331.  Preference  of  creditors 34.5 

332.  Minors 34(i 

333.  Defence  by  debtor o4i; 

334.  Discharge  without  jurisdiction 347 

335.  Subsequent  creditors 347 

336.  Beginning  of  proceedings 347 

337.  Prior  liens 347 

33S.  Conflict  of  jurisdiction  l)etween  federal  and  state  courts 34s 

3.39.  Concurrent  jurisdiction  between  district  courts 34!* 

340.  Accounting  between  members  of  a  bankrupt  tirm 34'.i 

341.  Ousting  jurisdiction  by  payments 351 

342.  Protection  of  debtor  from  arrest  by  state  court 35 1 

343.  Extent  of  bankruptcy  jurisdiction 351 

344.  Bankruptcy  by  a  corporation ' 352 

CHAPTER  Vn. 

CLAIMS  AGAINST  THE  NATIONAL  GOVERNMENT. 

J  345.  Suing  a  state  or  nation  in  its  own  courts 3.53 

346.  Definition  of  the  jurisdiction  by  the  .statutes 3.54 

347.  No  equitable  jurisdiction 35(i 

348.  Character  in  which  the  United  States  are  sued 358 

.349.  Not  liable  for  torts  of  their  officers 359 

350.  Revenue  laws  not  under  this  jurisdiction 362 

351.  No  jurisdiction  where  state  a  party . ._ 364 

352.  Loyalty  as  a  requisite  of  parties,  and  other  requisites 364 

3.53.  Patents  not  cognizable 3<'6 

354.  .Jurisdiction  only  extends  to  judgments  for  money 36(i 

355.  Where  paymaster  has  had  fund  stolen 366 

356.  Claims  arising  under  treaty 367 

357.  Reference  of  claim  to  commission — award 3(i7 

358.  Salvage  services 3(i'" 

359.  Equitable  jurisdiction 36« 

360.  Reference  of  claim  by  officer 368 

361.  Indian  supplies — quantum  meruit 369 


XVI  CONTP^NTS, 

Page^ 
j  ;)(i2.  Loss  b}'  adoption  of  now  rules  of  inspection — jurisdiction  in 

cases  of  illegal  imprisonment oGi> 

'Mo,  3(J4.  Military  damages  during  rebellion 3G">,  371 

36").  Abandoned  or  captured  property 371 

366.  Rebel  cannot  sue,  although  pardoned 372. 

367.  Liabilit}-  for  acts  of  executive  officers 372 

368.  Of  prize  court  decisions 372 

CHAPTER  VIII. 

ABANDONMENT    OF    HOMESTEAD    CLAIMS. 

§  360.  Duties  of  land  officers  usually  ministerial  but  judicial  as  to 

abandonment — instruction  of  land  commissioner 375 

370.  Jurisdiction  of  an  equitable  rather  than  legal  nature  herein.  . .   374 

371.  Effect  of  cancellation  of  claims 374 

372.  Synopsis  of  decisions  from  Lester 374 

373.  Unintentional  lapses 37» 

374.  Soldiers  and  sailors 375 

375.  Claim  made  while  in  the  army — what  absences  do  not  work 

abandonment 37(> 

376.  Only  one  entry  allowed 37t> 

377.  Double  homesteads  on  marriage 376 

378.  Homestead  entries  only  on  surveyed  tracts 377 

379.  Conflicting  claims  determined  by  bids 37T 

CHAPTER  IX. 

IMPEACHMENT.' 

§  380.  What  articles  of  impeachment  emt)race 37S 

381.  Effect  of  resignation  before  articles  are  preferred 378 

382.  Futility  of  impeachment  i->roceedings  at  present 379 

383.  Example — Hopkinson  case 379 

384.  Same— Peck  case 38» 

385.  Same — case  of   Judge  Chase   of   the    United   States   supreme 

court 380 

386.  Same — case  of  President  Johnson 384 

387.  Remark 385 

CHAPTER  X. 

JURISDICTION    OF    .JUSTICES    OF    THE    PEACE. 

^  388.  "Want  of  uniformity  in  the  different  states 386 

389.  Law  of  presumptions 386 

390.  Titles  to  lands 387 

.391.  Justices  of  the  peace  in  the  District  of  Columbia 391 

392.  Immunities  of  a  justice  of  the  peace 3r>2 


CONTENTS.  XVii 

i  31)3.  Process 392 

3il4.  Venue -502 

3!)5.   Rules  as  to  process  and  returns ;;;)4 

39(J.  Disqualification ;5!I5 

397.  Evidence .JDG 

398.  Judgments  by  default  not  allowable 3!H> 

399.  G uaidian  ad  litem 397 

400.  Discretion  of  a  justice 397 

401.  Void  and  voidal)le  acts 397 

402.  Jurisdiction  limited  by  amounts 397 

403.  Jury  trials 399 

404.  Entry  of  judgment 400 

405.  Kelation  of  a  justice  to  other  justices 401 

406.  Legislative  power  in  conferring  jurisdiction 401 

CHAPTER   XL 

COMMISSIONERS    OF  HIGHWAYS  ;    AND    HEREIN   OF  EMINENT    DOMAIN. 

§  407.  Special  judicial  powers 402 

408.  Record  evidence  of  jurisdiction 403 

409.  Statutes  must  be  strictly  pursued 403 

410.  Effect  of  exceeding  jurisdiction 404 

411.  Void  and  voidable  acts 405 

412.  No  power  over  navigable  streams 406 

413.  Highway  crossing  railroad 408 

414.  Altering  highways .• 409 

415.  Effect  of  wrongfully  laying  out  highwa}' 409 

416.  Estoppel  as  to  jurisdiction 409 

417.  Terms 410 

418.  Notice 411 

419.  Disqualifications 411 

420.  Nature  of  eminent  domain 411 

421 .  The  taking  of  property r 412 

422.  The  primary  right  is  in  the  legislature 413 

423.  Province  of  a  jury  as  to  the  taking 413 

424.  Public  use — how  decided 414 

425.  What  a  public  use  is 418 

426.  Delegation  of  power  strictly  construed 421 

427.  Discretion  of  officers  after  power  delegated 421 

.    428.  Presumptions  as  to  the  exercise  of  jurisdiction 422 

429.  Kinds  of  property  subject  to  the  right 422 

CHAPTER  Xn. 

ARBITRATION. 

5  430.  Nature  of  arbitration 424 

431    The  sulimission — parlies 426 


XVIU  CONTENTS. 

Page. 
j  432.  Minois 427 

433.  Guardians 428 

434.  Executors  and  administrators 429 

435.  Attorneys  at  law 431 

436.  Agents 433 

437.  Partners 43o 

438.  Joint  owners 440 

439.  Husband  and  wife 441 

440.  Corporations 442 

441.  United  States  district  attorneys 443 

442.  Effect  of  submission  made  while  under  arrest 443 

443.  What  may  be  arbitrated — what  an  award  may  embrace — sub- 

missions— revocation — disqualiticatious 44S 

CHAPTER  XIII. 

NATURALIZATION. 

5  444.  Duty  of  con.^ress  to  provide  for  nat  uralization 447 

445.  Naturalization  a  judicial  act 447 

446.  What  courts  ma}'  act 447 

447.  Conflict  of  authority  as  to  state  jurisdiction 448 

448.  Act  of  congress  not  authoritative  so  as  to  require  state  courts 

to  act 451 

449.  Record  of  naturalization  conclusive 453 

450.  Naturalization  not  retroactive 454 

451.  Singular  law  and  singular  execution  of  it 454 

452.  Naturalization  as  to  infants 455 

CHAPTER  XIV. 

QUO   WARRAXTO. 

4  453.  Ancient  writ  disused 456 

454.  Nature  of  the  action 456 

455.  Nature  of  the  jurisdiction 457 

456.  Prosecution  in  the  name  of  the  people 458 

457.  Legislative  amendment  pending  proceedings 460 

458.  Original  jurisdiction  of  a  supreme  court 460 

459.  Common-law  rules 461 

460.  How  jurisdiction  acquired  in  a  particular  case 461 

461.  Change  of  venue  of  case  transmitted  by  a  supreme  court  to  a 

particular  circuit  court 461 

462.  Consent  cannot  give  jurisdiction 462 

463.  Who  may  be  a  relator ■  •  •  • 462 

464.  W  hat  the  proceeding  embraces 463 

465.  State  not  bound  to  show  demand — prosecution  not  substituted 

for  impeachments  —  constitutionality  of  a  law  —  nugatory 
writs — forfeiture — discretion  —  private  appointments^— title 
to  past  otfice 463 


CONTENTS.  XIX 

Page. 
f  466.  Legal  organization  of  a  town — right  of  a  school  district — mili- 
tary office — rule  as  to  appointments — answer  to  be  made  to 

the  sovereignty — escheats — private  franchises 4GG 

467.  Writ  not  confined  to  the  subjects  of  the  ancient  writ 468 

46S.  Membership  in  a  city  council 468 

4Gft.  Contested  elections 468 

470.  Organization  of  new  counties 469 

471.  Exercise  of  an  office  while  proceedings  are  pending 470 

CHAPTER  XV. 

MANDAMUS. 

i  472.  Nature  of  writ 472 

473.  Discretionary 473 

474.  When  other  cases  pending 47(i 

475.  Common-law  rules 476 

476.  Not  allowed  when  there  are  other  adequate  remedies 476 

477.  Writ  to  enforce  official  duty 478 

478.  Demand  and  refusal 47ii 

479.  Matters  of  discretion — illustrations 480 

480.  The  writ  not  a  subsiitute  for  appeal 480 

481.  Only  enforces  po.ssible  acts 482 

482.  What  courts  may  issue 482 

483.  Writ  serving  as  a  writ  of  inquiry 482 

484.  Munclumus  from  an  appellate  court 482 

48').  Not  to  enforce  matters  arising  from  contract 483 

486.  Executive  officen; — extradition 483 

487.  State  treasurer 485 

488.  Secretary  of  state 486 

489.  Writ  issued  to  inferior  courts 486 

490.  Not  to  condemn  lands 487 

491.  College-professorship  case,  in  Michigan 488 

492.  Courtesy  among  judges  as  to  issuing  writ 489 

493.  Enforcing  compensation  to  school  teacher 489 

494.  Public  improvements — various  matters  as  to  payments 489 

49.5.  Ferry  tolls 494 

496.  Private  coi-porations 494 

497.  Church  and  society  matters  and  membership 495 

498.  Bids  enforced  by  mandamus 496 

499.  Elections 496 

.500.  Ousting  jurisdiction  by  expiration  of  office 497 

501.  Mandamus  not  to  try  title  to  office 497 

502.  But  demand  for  room,  keys,  etc.,  may  be  enforced 497 

503.  Location  of  highways 498 

504.  Compelling  successor  to  seal  a  county  warrant 498 

505.  Compelling  to  correct  a  deed  or  sign  a  contract 498 

506.  Compelling  admission  of  a  colored  child  to  the  public  schools — 

enforcing  right  of  a  school  committee 499 


XX  CONTENTS. 

Page. 

§  r)07.  Surveys 491) 

508.  Miscellaueous  particulars 49i> 

rMK  Return  to  the  writ .'.00 

510    Kf'lators 500 

CHAPTER  XVI. 

PROHIBITION— iV£  EXEAT. 

$  511.  Distinctions 502 

512.  Nature  of  the  writ  of  prohilntion 503 

513.  Its  design 503 

514.  As  to  the  mayor  of  a  city   504 

515.  As  to  the  levy  of  taxes 504 

516.  Connection  with  appellate  jurisdiction 504 

517.  Its  object  is  not  to  correct  errors,  but  to  restrain  courts 504 

518.  Contempts 50ti 

519.  Decline  of  ne  exeat  writs 500 

520.  Its  status  in  New  York 50G 

521.  Purpose  of  the  writ 507 

522.  Nature  of  debt 509 

523.  Trover 509 

524.  Partnership  settlements 510 

525.  Divorce  and  alimony 510 

526.  No  remedy  at  law 510 

527.  Affidavit 511 

528.  Power  of  a  justice  of  the  peace 511 

529.  Enforciug  specitic  performance — issuing  in  vacation 511 

CHAPTER  XVn. 

ATTACHMENT. 

$  530.  Statutory  basis 512 

531.  Parties — non-residents 513 

532.  Joint  claims 517 

533.  Mere  absence 518 

534.  Intention  to  avoid  process 519 

535.  Design  to  defraud  creditors 519 

536.  Absconding  or  concealment 520 

537.  Having  different  residences 521 

538.  Non-resident  creditors 521 

539.  Intending  to  remove  property  or  dispose  of  it  fraudulently. . . .  521 

540.  Title  to  concealed  property 522 

541.  Construction  of  affidavits 522 

542.  Liability  of  corporations —national  banks 523 

543.  Property  of  decedents'  estates 524 

544.  Nature  of  affidavit 524 

545.  Actual  levy 525 

546.  Debts  not  due 525 

547.  Kinds  of  property  subject — supplementary  note 525 


CONTENTS.  XXi 

CHAPTEE  XVIII. 

GARNISHMENT. 

Page. 

i  548.  General  statement 528 

54'J.   Rights  subject  to  ii'arnisliment 529 

550.  Singular  Louisiana  case 530 

551.  Cases  of  fraudulent  sales 536 

552.  Assignee  of  promissory-  note 537 

553.  Joint  debts 537 

554    Monej^  in  the  hands  of  an  otlker,  or  in  coui't — attorneys — treas- 
urers—judgment deiitors — juror  fees 537 

555.  Agents 539 

55G.  Executors  and  administrators 539 

557.  Partnerships 540 

55S.  Municipal  corporations 541 

559.  Private  corporations 541 

560.  Railroad  agents — bank  officers,  etc 542 

561.  Monej'  deposited  with  specilic  directions 544 

5C2.  Specific  money  in  the  hands  of  an  attorney 544 

563.  Husband  and  wife 545 

564.  Salaries  and  wages 545 

565.  Contractors  and  employers 545 

5W>.  Indemnity  mone_y 546 

567.  Claims  under  insurance  policies 546 

568.  Guests 546 

560.  Lands  fraudulentlj- mortgaged — fraudulent  assignments 546 

570.  Consignees 547 

571.  Guardian  of  spendthrift 547 

572.  Set-off 547 

573.  Military  bounties 547 

574.  Double  garnishment 547 

575.  Effect  of  service  of  writ 547 

576.  Exemptions — wages 548 

CHAPTER  XIX. 

HABEAS    CORPUS. 

j  577.  Nature  of  the  writ 549 

57s.  Power  to  issue  it 550 

579.  Inquiry  into  jurisdiction 551 

580.  Imprisonment  for  obeying  United  States  laws,  etc 552 

581.  Power  of  appellate  coui-t 552 

582.  Sentence  by  de  facto  judge 553 

583.  Fugitives  from  justice 553 

584.  Whether  constitutionality  of  laws  may  be  examined 556 

585.  Proof  as  to  legalitj'  of  detention 557 

586.  Commitments  for  contempt 557 


XXU  CONTENTS. 

Page. 

f  r>S7.  Inquiry  as  to  the  nature  and  validity  of  process 558 

588.   Unlawful  enlistments  of  minors 558 

585).  Custody  of  children 559 

SflG.  Criminal  cases  where  indictment  is  found — sentence 563 

501.  Arrests  on  civil  process 564 

592.  Bail 565 

593.  Joint  indictments  when  only  one  is  tried 565 

594.  Inquiries  as  to  the  legality  of  a  sentence 565 

595.  Recognizance  of  appeal 565 

596.  Lunacy 566 

597.  Vacation — parties — appeals — jury , 566 

598.  Suspension  of  writ 566 

CHAPTER  XX. 

JURISDICTION    OF    MILITARY    COURTS. 

f  599.  Jurisdiction,  ordinary'  and  extraordinary 571 

600.  Kesistance  to  drafts  or  enrollment — enticing  aw'ay  out  of  the 

state — enticing  a  minor  into  the  army 576 

601.  Desertion 577 

602.  Officer  whose  commission  is  revoked — natvireof  courts  martial.  577 

603.  Spies 577 

604.  Mutiny  and  other  oflences 577 

605.  Distinction  of  offences  at  law  and  under  military  rule — distinc- 

tion between  martial  and  military  law  (in  foot  note) 578 

CHAPTER  XXI. 

TAXATION. 

§  606.  Xature  of  the  tax-taking  power 580 

607.  Compelling  the  levy  of  a  tax 582 

608.  Mandamus  by  the  United  States  courts 583 

609.  Compelling  the  extension  of  a  tax 584 

610.  Enforcing  tax  against  delinquents 584 

611.  Nature  of  proceedings  against  delinquents 585 

612.  Right  of  court  to  make  rules 585 

613.  Who  ma}^  apply  for  judgment 585 

614.  Terms  of  court 586 

615.  Personal  judgments 586 

616.  Injunction — when  it  will  lie — general  rule 5b7 

617.  When  courts  will  not  grant  injunction 589 

618.  Where  there  is  a  remedy  at  law 591 

619.  One  who  seeks  equity  must  do  equitj- 593 

620.  How  far  courts  will  grant  relief 594 

621.  Parties  in  a  proceeding  to  enjoin 598 

622.  Legal  remedies  available — actions  against  officers  and  munici- 

pal corporations — set-offs 600 

623.  Protection  of  officers 602 

624.  Recovering  back  taxes  involuntarily  paid 603 


CONTENTS.  XXlll 

CHAPTEK  XXII. 

POWER    OP   COURTS    OF    EQUITY    TO    SELL   LANDS. 

Page. 

625.  General  statement (508 

626.  Equity — no  inherent  absolute  right  to  sell  lands 608 

627.  The  power  is  statutory G0!» 

628.  Law  of  the  place  controls 610 

629.  Proceedings  in  partition 610 

630.  Kinds  of  property  subject  to  partition 611 

631.  Clear  legal  title  necessary 612 

632.  And  a  present  right  of  possession 613 

633.  Parties  in  general 615 

634.  Infant  parties (517 

635.  Duplicity  in  partition  proceedings 618 

636.  Sale  of  lands  in  partition 618 

637.  Partition  should  be  entire  and  thorough 620 

638.  Parties  in  equity  to  proceedings  to  sell  land 620 

639.  Sales  at  the  instance  of  minors  as  plaintiffs 623 

640.  Estates  in  remainder 624 

641 .  Remainder-men  must  be  parties 624 

642.  Confirmation  of  sales 625 

643.  Eesales 626 


TABLE  OF  CASES. 


T^OTE. — In  the  following  table  an  *  denotes  that  the  case  is  to  be  found 
referred  to  in  the  body  of  the  page  so  marked.  All  other  references  are 
found  in  the  foot-notes. 


Page 

Abbott  V.  Dexter 440 

Abel  V.  Love 291 

Abnev  v.  Whittcd *f)4 

Abraham  v.  Hall 94 

Acorn  (The) 4.53 

Adam  v.  Litchfield (i06 

Adams  v.  Bark 269 

Adams  v.  Evans .514 

Adams  v.  Iron  Co 614 

Adams  v.  Lamar 106 

Adams  v.  People 332 

Adams  v.  Whitcorab .510 

Akele}'  v.  Akeley 44.5 

Albergottie  v.  Chaplin 615 

Albrecht  v.  Sussman *90 

Alderman  v.  Directors 470 

Aldrich's  Case 163 

Aldrich  v.  Hawkins .52 

Alexander  v.  Thompson 96 

Alexandria  Canal  Co.  v.  8wann..  442 

Alger  v.  Easton 600 

Alicia  (Tlie) 281 

All  re's  Case 366 

Allan's  Case .5.50 

Allen's  Case 1S.5 

Allen  V.  JSelchcr 399 

Allen  V.  Bratton 240 

Allen  V.  Burlington 604 

Allen  V.  Drew. ." ,5s9 

Allen  V.  Graves 623 

Allen  v.  Jones 413 

Allen  v.  Queensluiry *141 

Allen  V.  Robinson. ." 4S2 

Allen  V.  Kailroad 32,  149 

Ailing  V.  Munson 430 

Allison  V.  Commissioners 410 


Page 

Alsberg's  Case 56.5 

Alston  V.  Newcomer 515,  517 

American  Land  Co.  v.  Grady. . .  526 
American  Print  Works  v.  Law- 
rence    41.3 

Ames  V.  Bowland 48 

Amv  v.  Supervisors *89 

Anchors  (The) 270 

Anderson  v.  Chenney 540 

Andrews  v.  Benhardi 46 

Andrews  v.  Kailroad 524 

Andrews  v.  AVallace 293 

Andrews  v.  Wheaton 52 

Angel  v.  Manufacturing  Co. . . .  132 

Angisola  v.  Arnaz 284 

Anonymous  {1  Hill,  669) 121 

Ansley  v.  Alderman 96 

Answer  of  the  Justices 34 

Apgar  V.  Trustees 48!) 

Appleton  V.  Appletcm 83 

Application  of  Judges 168 

Appo  V.  People 505 

Armstrong  v.  Stone 561 

Arnold  v.  Middlctown 592 

Arnold  v.  Stvles 114 

Ashuelot  Bank  v.  Pear.son  .  ...97,  100 

Askew  V.  Myrick 226 

Askew  V.  Askew 399 

Athelstone  v.  Moon&  Willis..  *441 

Atoclia's  Case 36S 

Attacapas  (The) 270 

Attaquin  v.  Fish 59 

Attorney  Geneial  v.  Lawrence.  496 

Atwell  V.  Zeluff 6o4 

Aultman&  Tavlor  Co.  v.  Stein- 
all  ; 74 

(2.5) 


XXVI 


TABLE    OF    CASES. 


Png;e 

Aurora  (The) 2Sl 

A  mora    Fire  Insurance   Co.    v. 

.lohnson  76 

Austin  V.  Learing 140 

Atistralia  (The) tlSl 

Averill  v.  Steamboat 150,  266 

Jiahcock  V.  (Goodrich 493 

Baheock  v.  Granville 604 

Badger  v.  ^IcNamani 226 

J5adniev  v.  ileaid.. 397 

15a i ley  V.  Fitzgerald 21 

Bailey  v.  Lacey 533 

Baines  v.  Schooner 2u4 

Baker  v.  Chapline 29 

B;d<er  v.  Gorrlou 566 

J5;Ucer  v.  Lovctt 427,  42S 

Baker  v.  Kuntiels 404 

Baldwin  v.  Aldrich 620 

Ball  V.  Lappins 479 

Bales  of  Cotton 2^1 

Bales,  (21,)  etc 279 

Ballanee  v.  Underhill 247 

Banekerv.  Harrington 534,  535 

Bank  v.  Brooks 97 

Bank  v.  Bullock 535 

Bank  V.  Chalfant 607 

Bank  v.  Clarke 625 

Bank  v.  Collins *230 

Bank  v.  Duncan 55 

Bank  v.  Elinira 581 

Bank  v.  Gibson 48,  76 

Bank  v.  Hall 526 

Bank  v.  Hastings 82 

Bank  v.  Hill 121 

Bank  v.  Inloes 149 

J5ank  v.  Krance *119 

Bank  v.  New  York 595,  607 

Bank  v.  Pearson 97,  100 

Bank  v.  Heed 74 

Bank  v.  Railroad  (Vt.) 150 

Bank  v.  Railroad  (Wis.) 536 

Bank  v.  Russell 24:'. 

Bank  v.  Schermerhorn 185 

Bank  v.  Shryock 534 

Bank  v.  Wells 530 

Bank  v.  Wilson 14,  136 

Bank  v.  Woland 135 

Bannister  v.  Plxecutors *445 

Banta  v.  McNeill 268 

Biplist  House  v.  Webb 45s 

Barhanistead  V.  Parsons 326 

Barhyte  v.  Shephard 581 

Bark  Alaska 268 

Jiark  Cunard 268 

P.arkhull  v.  Herwig *150 

Bark  Jupiter 279 

Barlow  v.  Lambert 204 

Barnard  v.  Hinkley *116 

Barnes  v.  Harris  . ' 70 


Page- 
Barnes  V.  Schmitz 46 

Barnes  v.  State 167 

Barnes  v.  Underwood *11.3 

Barnett  v.  Wolf 46 

Barney  Eaton  (The) 269 

Barrel!  v.  Benjamin 110 

Barrett's  Case 551 

Barrett  v.  Cambridge 604 

Barrett  v.  Crane 12 

i?arry's  Case 563 

Barry  v.  Jones 184 

Barrv  v.  Patterson 156 

Bartiiell  v.  Roderick 243 

Bartlett  v.  Holmes 101) 

Bash  ford  v.  People 162: 

Baspole'  s  Case *440 

]}atchelder  v.  3Ioore 181 

Batchelder  v.  Norse ]6(t 

Bate  V.  Speed 602 

Bates  V.  Visher 432. 

Btiiun  V.  Stern 617 

Baxter  v.  Board  of  Trade *142 

Bay  City  Bridge  Co.  v.  Van  Et- 

ten 22.5 

Beam  v.  Coleman 235 

Beam  v.  Macomber *425 

Beaman  v.  Police 500 

Bean  v.  Farnam 430 

Bear  v.  Cohen 168^ 

Beattie  v.  Brown 597 

Beaubien  v.  Brinkerhoff 23 

Becherdass  Ambaidass  (The)  . . .   278 

Bedel  v.  Loomis 108^ 

Bee  (The)  ....  277 

Beebe  v.  Trafford 429 

Beecher  v.  Beecher 614 

Beers  v.  People 58!>- 

Beghul  V.  Swan 482 

Beisch  v.  Co.xe 32 

Belgard  v.  Morse 56S 

Belfast  (The) 256,  267 

Bell's  Appeal 297 

Bell  V.  Avres 96 

Bell  V.  Gilbert   *544 

Bell  V.  Pierce 582 

Bell  V.  Prouty 390 

Bellamy  v.  Hawkins 22"> 

Bennett  v.  Burch 32- 

Bennett  v.  McGuire 136 

Bentley  v.  Terry 550,  *562 

Bentley  v.  Weaver 121 

Bernheimer  v.  Calhoun 283 

Berry  v.  Johnson 291 

Berry  v.  Linton 97 

Bevard  v.  Young 136 

Beverly  v.  Stephens 432 

Bevey  v.  Carter *427 

Bibb  V.  Commissioners 492 

Billings  V.  Carver 189' 

I5illings  V.  Russell 603. 


TABLE    OF    CASES. 


XXVU 


Pilate 

Jiillino-.slv  V.  llariis 292 

liilliiigsly  V.  State 102 

J'.ind's  Executor  v.  Administra- 
tor     299 

liinyham's Trustees  V.  Guthrie..  433 

IJiningcr's  Case 341 

Biiisorn's  Case *291 

JJird  V.  Jenkins tit>l 

IJirdv.  Perkins <Hi2 

JJirscoe  v.  Allison r)94 

Piishop's  Case •  •  •  ■   370 

r.ishop  V.  Banks 249 

JJishop  of  Cliicago  v.  Chiniquv  *231 

Bissell's  Case 181,  r)58 

JJisscll  V.  Bissell, 392 

Bivens  v.  Harper 539 

Black  V.  Epperson 27 

Black  V.  Ward *313 

Jjlackburn  v.  State l")<s 

Bladen  v.  Philadelphia 'id 

I51air  v.  State  Bank 2 

Blakeman  v.  Blakeraan 243 

Jilancliard  v.  Goss W3 

Blanehard  v.  Richly 400 

Bledsoe  v.  Railroad 37 

Blimm  v.  Commonwealth 127 

Blin  V.  Heath 240 

Bliss  V.  Turnpike  Co t)() 

Jilodgett  V.  Hildreth GU> 

Bloom  V.  Burdick 71 

P'loomtield.    etc.,  Gas-light  Co. 

V.  liicliardson 421 

Jj] yininan  v.  Brown (J13 

Bo'ardnian  v.  Goldsmith ti02 

Board  of  Commissioners  v.  Mar- 

kle 30 

Board     of      Commissioners     v. 

Thompson' 30 

Board  of  Education  v.  Scoville . .   117 

Roa/ZsCase 559 

Bobh's  Suceession 284 

Bolil  V.   Fisher 624 

Bogan  V.  Doughdrill *425 

Jjogart's  Case 309 

Biigart  V.  Steam-boat 265 

Jjolgians  V.  Cooke 62.5 

Pxjlhia  (The) 275 

Bollman  &  Swartwout's  Case..   .■'>91 

Jiond's  Ofi^i' 5:12 

Bond  V.  Clay 294 

Bone.steel  v.  Bonesteel 507 

Honnell  v.  Holt 74 

Bonner  v.  United  States 358 

Boone  v.  Poindexler 3 

i^oone  V.  Revis (>4 

Booth's  (;ase 550,  558,   5(i6 

Booth  V.Todd 296,  29s 

Booze  V.  Humbird 4s2 

Horger  v.  >K)ore *394 

Boston,  etc.,  Railroad  Co.  Case.   349 


Puge 
Boston,   etc.,   Mill-dara   Co.    v. 

Newman *420 

Boston  V.  Brazer 443 

Bostwick  V.  Skinner 28/ 

Bouldin  v.  Ewart 117 

Bow  V.  Wilson 445 

Bowden  v.  Perdue *25ii 

Bowditch  (The) 271 

Bowen  v.   Hixon 469 

Bower  v.  ]McCormick 398 

Bowers  v.  Green 56 

Bowers  v.  Pomeroy 390 

Bowie  V.  Ghiselin 293 

Bowman  v.  Elj' 123 

Boxes  (500)  of  Pipes 275 

Boyce  v.  Wilson 243 

Boyce's  Executors  v.  Grundy. . .   224 
Boyd's  Heirs  v.Magruder'sHeirs  441 

BoVd  V.  Glass 291 

Bovlan  V.  Steam-boat 267 

BoVle  V.  Rice 100 

Bo"yle  V.  Bobbins 398 

Boynton  v.  Rees 217 

Brace  v.  Gradv 525 

Bradtield  v.  Wait 497 

Bradley  V.  Fisher 170,  172,  178 

Bradley  v.  Norton 249 

Bradshaw's  Appeal 300 

Brady  v.  Richardson 163 

Brahmstead  v.  Ward 40 1 

Brainard  v.  Head 60:> 

Brainard  v.  Van  Kuran 546 

Brattan  v.  Anderson 64 

Brauner  v.  Chapman 7(> 

Brauser  v.  Insurance  Co 542 

Breck  v.  Smith 506 

Breden  v.  Gilliland 292 

Breed  v.  Mitchell 524 

Bremer  v.  Bain *424 

Bresnihan  v.  Sheehan 5:50 

Brevoort  v.  Brevoort 61ii 

Brewer  v.  Springfield 592 

Brewster's  Case 179 

Bridge  Co.  v.  Wyandotte  Co ... .   600 

Bridges  v.  Sperry 619 

Brig  America  (The) 268 

Briggs  V.  Georgia 5!> 

Brigiit's  Case 368,  *579 

Brinkley  v.  Brinkley Is2 

Brioso  V.  Power 226 

Britain  v.  Cowan 119 

British  Prisoners  (The) 33S 

Brittle  v.  People 40 

Bnjadwell  v.  People 5.'! 

Broadwell  v.  Smith *97 

Brock  V.  Eastman 613,  614 

J}rock  V.   (;ale J2s 

Broderick's   Will 5.3 

Brooks  V.  Allen 72 

Brooks  V.  Delaplaine 149 


XXVill 


TABLE    OF    CASES. 


Page 

linioks  V.  Slu'Uon 02 

JiiDuuliion  V.  United  States *.'}iil 

liiowirs  Case 372,  558 

JirowiTs  Appeal 29li 

JJiDwii  V.  Brown    18S 

Hrown  v    Keener *418 

Brown  v.  State 06 

Brown  V.  United  States    360 

Brown  v.  Wel)ber 75 

Brown  v.  Wheeler 443 

Brown  v.  Woody 49 

Browntield  v.  Weight 28 

Bruggenian  v.  True 412 

Brnner  v.  Meigs *240 

Brunini  v.  Pera 225 

Bryan's  Case 368 

Bryan  v.  Fonder 511 

Bryant  v.  Fussell 524,  532 

Bryant  v.  Hendee 527 

Bryant  v.  Stephens 477 

Bryce  v.  Insurance  Co 245 

Bryson  v.  Spalding 48(1 

Buchanan  v.  Carry 435 

Buck  V.  Buck  .  . . ." l-^S,  189 

Buck  V.  Colbath 154,  *350 

Buckland  v.  Conwaj'^ 432 

Buckley  v.  Dowle}' 55,  58 

Bucknall  v.  Story 591 

Buddington's  Case 551 

Buell  V.  Ball 601 

Buell  V.  Cole 248 

Buford's  Case *167 

Buf ord  V.  Buford 609 

Bulkley  v.  Elchart 531 

Bulkley  v.  Kedniond 289 

Bullitt  V.  Musgrave 435 

Bullock  V.  Bergman 420 

Bull's  Case 552,  563 

Bulwinklev.  United  States 366 

Bundy  v.  Dodson 577 

Burgeuhofen  v.  3Iartin 02 

Burill  V.  Jewett 515 

Burke  v.  Speer 589 

Burks  V.  Burks 617 

Burlingame  v.  Parce 64 

Burlingham  v.  Deyer 396 

Burlington  Uniyersity  v.  Exec- 
utors   '. 169 

Burnell  v.  Everson 444 

Burnhani  v.  Fond  du  Lac 531 

Burnhara  v.  Kemptou 249 

Burnley  v.  llice 232 

Burns'  Case 366 

Burton's  Appeal 610 

Burton  v  Gleason 248 

Burns  v.  Henderson 63 

Burns  v.  Keas 612 

Burr  V.  Hunt 597 

Burrows  y.  People 120 

Burt  y.  Executors 2!s4 


Page 

Burt  V.  Weeks 294 

Busley  v.  Noland 605 

Busch  V.  Hardwicke 504 

Bush  V.  Lindsey 29s 

Bushnell,  Ex  parte 44 

Buysey  &  Co.  v.  Nelson 66 

Butler  V.  Carter 108 

Butler  V.  Supervisors 482 

Butler  V.  Wagner 95 

Butterworth's  Case 447 

B3'ers  v   Danley 614 

Byrne  v.  Edmonds 243 

Cabarga  (The) 267 

Cable  V.  Alvord *300 

Cable  V.  Cooper 12 

Cabot  Bank  Appeal 164,  165 

Cadigan  v.  Br. wu 227 

Cages  Case 487 

Cain  V.  Simpson *393 

Calayeras  Co.  v.  Brockway 487 

Caldwell  v.  Stewart 540 

Calhoun  v.  State 119,  120 

Calhoun  v.  Whittle 533 

Call's  Case 553 

Call  V.  Pike 180,  *395 

Callahan  v.  Judd 54 

Callahan  v.  Xew  York 4s 

Calley  v.  Saybrook 103 

Campbell  v.  Conner 291 

Campbell  v.  United  States 303 

Campbell  V.  Wilson 75,  109 

Campfield  v.  Johnson *387 

Canal  it  Banking  Co.  v.  Comly.   520 

Canal-boat  Tremaine '. .  208 

Canal-boat  Walsh 26s 

Carey  v.  Gunnison 524 

Carlaga  v.  Dryden 487 

Carlin  v.  Cavender 580 

Carpenter  v.  City 226 

Carpenter  v.  Shepardson 75 

Carpenter  v.  Spooner 73 

Carroll  v.  Commonwealth 12> 

Carsori  v.  Commissioners 5s 

Carter's  Appeal 300 

Carter's  Heirs  v.  Administrator  290 

Carter  v.  Administrator 211 

Carter  v.  Carter 425 

Carter  v.  Taylor 61.'! 

Carter  v.  Wilson ., 520 

Carver  v.  Carver 74 

Carville  v.  Additon 00:! 

Casebott  v.  Donald 533 

Casey's  Case 34s 

Casey  v.  Davis 539 

Casii}'  V.  State 12 1' 

Cate  V.  Farber 469 

Cavedo  v.  Billings   224 

Center  v.  McQuesten 530 

Center  Township  v.  Hunt 599 


TABLE    OP    CASES. 


XXIX 


Page 

Central  Bank  v.  Gibson 76 

Central  Nat.  Bk.  v.  Kichmond 

Nat.  Bk 524 

Chace  v.  Benhum 123 

Cliadbourn  v.  Chadbourn 430 

Chainev.  Wilson *5HJ 

( 'haisley  v.  Brewer 531 

Chamberlain  v.  Chandler 274 

Chambers  v.  H-ulges 165 

Chambers  v.  Jones 71,  618,  625 

Cliapin  V.  James *15() 

Cliapin  V.  Kailroad 541 

Chajiman  v.  Dalton *440 

Chapman  v.  Morgan 47 

Chariton  Co.  v.  Moberly 521 

Chase  v.  Cheney 147 

Chase  v.  Hale 401 

Chase  v.  Hathaway 286 

Chase  v.  Whiting ." 2s3 

Ciiegaray  v.  Jenkins 603 

Cherokee  Nation  v.  Georgia. . . .   *17 

Chess'  Appeal 297 

Chests  (350)  of  Tea 275 

Chew's  Exeeutors  v.  Chew 292 

Chiniquy  v.  People 589 

Cliipman  v.  Montgomery 225 

Chir.ic  V.  Chirac *451 

Chi-iholm  v.  Coleman 172 

Chittenden  v,  Rogers 232 

Christern"s  Case 449 

Christy  v.  Newton 409 

Clmreii  in  Chelsea  v.  Slack 47(i 

Church  V.  Crossman 32,  74,   115 

City  of  Chicago  v.   Kailroad. . . .   156 

City  of  Chicago  v.  Sansum 583' 

City  of  Jeft'ersouviile  v.  Ferry- 
boat    268 

City  of  Opelika  v.  Daniels *150 

Clapp  V.  Bromagham 614 

Clapp  V.  Foster 163 

Clapp  V.  Walker 541 

Clark's  Case 348,  370 

Clark  V.  Bininirer's  Case 351 

Clark  V.  Axfofd 603 

Clark  V.  Bininger 348 

Clark  V.  Conniionwealth  .  .  .15>^,  159 

Clark  V.  Demue 398 

Clark  V.  Directors 4S0 

Clark  V.  Holmes   30,     74 

Clark  V.  Lamb 159 

Clark  V.  Nort  on 581 

Clark  V.  People 120, 178,  ISO 

Clark  V.  Sawyer 122 

Clarke  v.  Graham 610 

Clarke  v.  Navigation  Co 217 

Clarke  v.  Perry 284 

Clason  V.  (Jorlej^ SO 

Clay  V.  Barlow 100 

Clayton  v.  Wallace 168 

Claywell  v.  Sudderth 152 


Cleghorn  V.  Postlewaite 596 

("leland  v.  Fish 239 

Clement  v.  Everett 594 

Clement  v.  Foster *42G 

Clepper  v.  State I4s 

Cleveland  V.  Chamberlain 186 

Cleveland  v.  Road  Board *250 

Clifl'ord  V.  Cabiness 401 

Clippinger  v.  Fuller 49:i 

Cloman  v.  Staton 75 

C'lough  V.  Buck    535 

Clyde's  Case 369 

Cobb's  Executor  v.  Buuns 297 

Cobb  V.  Howard, 27 1 

Coburn  v.  Hanely 211 

Cochran  v.  Ingersoll 188 

Cocke  V.  Finley 288 

Cody  V.  Ravmund 283 

Coev.  Railroad, 413,  *416 

Cofer  V.  .Miller (523 

Coffee  V.  City 4(j 

Coft'ey  V.  Coffey 622,  625 

Coflin  V.  Cottle". 430 

Coflin  V.  Schooner 270 

Cohen's  Case 2,  557 

Coit  V.  State 133 

Cole  V.  Colby 226 

Cole  V.  Hines *390 

Cole  V.  Johnson *231 

Coleman's  Appeal 44,  72,  79 

Coleman  v.  Chisholm *]9 

Coleman  v.  Coleman 612 

Coleman  v.  Grul)b 43.'! 

Coleman  v.  Semmes 442 

Coleman  v.  Tennessee *569 

Collamer  v.  Pa ige 11 

College  Street,  in  re 45 

Collins  V.  Draining  Co 97 

Collins  V.  Plammack 1G4 

Collins  V.  Johnson 295 

Collins  V.  Smith 547 

Collins  V.  State 117 

Colly  V.  Doughty 226 

Columbian  Book  Co.  v.  De  Gol- 

yer 531 

Cply  V.  Leonard 304 

Colyer's  Case 550 

Commissioners  v.  Bank 37 

Commissioners  v.  Bond 531 

Commissioners  V.  Brown 591 

Commissioners  v.  Brysen 49s 

Commissioners  v.  Detroit 59."! 

Conmiissioners  v.  Martell  ......     30 

Couunissioners  v.  ]\lcCarty 59 1 

Commissioners  v.  People  ex  rcl. 

(111.) 47s 

Commissioners  v.  Philadelphia  .  490 

Commissioners  v    Spitler 5(i5 

Commissioners  V.  Swayne 517 

Conunlssioners  V.  Thompson.  ..     30 


XXX 


TABLE    OF    CASES. 


I'M, lie 

C'ominouwealtli  v.  Allt^i 4.')1,  4(i8 

Coiiiinonwralth  V.  Andrews 332 

C'oimiKunvi'ullh  v.  Atlifarni 4G;"1 

(.'iiiuiuoiiwcalth  V.  Bank  (Pa.)..  4(33 
<\)inm(m\voalth  v.  Bland. iig.  ...   32s 

{'omnionwralth  v.  Hri<];;s 5G2 

Coniniomvi-altli  v.  Buford *1()7 

Conunonwcalth  v.  Bnnn 2S!) 

Conunonwcalth  V.  llurding. . ..    164 

('onnixonwealth  v.  Canada 401 

Commonwealth    v.    Carey   Im- 

])rovemenl  Co 5S2 

Coniraonwcaltli  v.  Charlestown  408 

Comnunnvcalth  V.  Coonil)S 407 

Commonwealth  V.  Cushing ,o.5S 

Commonwealth  v.  Dillon 461 

Commonwealth  V.  Downes 5.58 

Commonwealth  v.  Elhvel! *313 

Commonwealth  v.  Emmons *313 

('(mimon wealth  v.  Essex  Co..  .  .*420 

Commonwealth  v.  Farren *313 

Commonwealth  v.  Foster .   392 

(\)mmonwealth  v.  Fowler 460 

Commonwealth  V.  Gamlile 172 

Commonwealth  v.  Gillespie. . . .  32S 
Commonwealth  v.  Goodman . . .  *3 13 
Commonwealth  V.  Hamilton.  ..  HGl 
('onnnonwealtji  v.  Hammond.  . .  561 
Commonwealth  V.  Harrison....  5')S 
Commonwealth  V.  HawUes.  .. ..   158 

I'ommonwealth  v.  Hill 326 

Commonwealtli  v.  Holder 332 

Commonwealth  v.  Jacoljs 577 

Commonwealth  v.  Jones 4(>3 

Commonwealth  v.  Keenan 160 

Commonwealth  v.  Kirkl.ridge. .  566 

Commonwealth  v.  Leatch 217 

Commonwealth  V.  Lockw^ood...  314 
Commonwealth  V.  Maeloon. ...  319 
Commonwealth  v.  MeCloskj'....     61 

(..'ommonwealth  v.  3Iil]s 101 

Commonwealth  v.  Mitchell  ....   472 

Commonwealth  v.  Peters 106 

Commonwealth  v.  Savings  Bk..  589 

Commonwealth  v.  iSmall 465 

Commonwealth  V.  Smith. .  .328,  465 

Commonwealth  v.  Tabor  . . 1S9 

Commonwealth  v.  Todd 82 

Commonwealth  v.  Upricliard  . .  332 

Commonwealth  V.  Walker 463 

Conlin  v.  Aldrieh 499 

Connecticut  v.  Caldwell .526 

Connell  v.  Voorhees *360 

Oonnory  v.  Swift 234 

Conover  v.  Mayor 152 

Conover v.  Wood 1^4 

Conwaj'  V.  Armington 532 

('onwaj'  V.  Duncan..    *426 

Conway  v.  Waverly  Township..  593 
Con3"ers  v.  Brown 236 


Page 

Coohan  v.  Brvant 4ti 

Cook  V.  Berth 160 

Cook  V.  Renick 214 

Cook  V.  Treasurer 472 

Cook  V.  Walker 116 

Cooke  V.  National  Bank 524 

Coombs  V.  Commissioners *415 

Coon  V.  Snyder 40o 

Cooper  V.  Brewster 125 

Cooper  V.  Xelson 501 

Coojier  V.  Water-power  Co 612 

Coopwood's  Case *566 

Coopwood  V.  Prewitt 165 

C(jpe  V.  Kam.say 169 

Copeland  v.  Beau 3>'*9 

Corhett's  Case 370 

CorJiego  V.  Strafford 591 

Corley  v.  Bean 236 

Cornelius  v.  Morrow 231 

Cornell  v.  VV  ilson 394 

Cornwallis'  Case 317 

Corwin  v.  Shoup 61s 

Cotton  Press  Co.  v.  Chevelicr..   104 

County  Treasurer  v.  Dyke 37 

Cowell  V.  Patterson *563 

CoAveu  V.  Doddridge 486 

Cowen  V.  Quinn 76 

Cox  V.  Graham 390 

Cox  V.  luglestone 611 

Cox  V.  Izard 241 

Cox  V.  Murray , 267,  269 

Cox  V.  Stanton ;;98 

Coxe  V.  Smith 613 

Crafts  V.  Hall 232 

Craighead  v.  Martin *394 

Crain  v.  Gould 533 

Crawford  v.  Waterson 83 

Crawford  v.  Wiuglield 232 

Crerar  v.  Railroad 548 

Cromwell  v.  Bark 270 

Cross'  Case 368 

Cross  V.  DeValle 235 

Cross  V.  Moulton 400 

Croxall  V.  Sherard 624 

Crutcher  v.  Herd *S9 

Culbertson  v.  Tomlinson 398 

Culliton  V.  United  Stales 365 

Cully  V.  Laybrock 100 

Cummings  v.  Garvin 532 

Cunningham  v.  Hall 260,  527 

Cunningham  v.  State 312 

Curry  v.  Woodward 533 

Curtis. V.  Alvord 533 

Cusliing  V.  Sambold *93 

Cutler  V.  State *313 

Cutting's  Case 472 

Cutting  V.  Gi]l)ert COO 

Dailev  v.  Litchtield 246 

Dake"v.  Miller 74 


TABLE    OF    CASES. 


XXXI 


Dale's  Case 352 

Dalton  V.  J.ihbj' 2o;5 

Dana  v.  Nelson 2.'U 

Danalier V.  Pieni iss .'J47 

Dane  v.  Derby nOU 

Dane  v.  Holmes ; ,   SoG 

Danfoith  v.  Thompson 4S 

Daniel  Ball  (The) 2:^1 

Daniel  v.   Smith 4") 

Daniels  v.  Daniels *12s 

Daniels  v.  Logan r)2(J 

Daniels  v.  Moses (ils 

Danton  v.  Woods (il4 

Daiap  V.  Westei-lage   5;')^ 

Darling  v.  Conklin ;J99 

Darrow  v.  Morgan 6G 

Darst  V.  Collier *42(j 

Dart  V.  IJank 71) 

Dartez  v.  Lege *;';') 

Davell  V.  Davell 404 

David  V.  Blundell r^'A 

Davie  v.  McDaniel 2s3 

Daviess  Co.  Court  v.  HoAvard.  .*128 

Davis'  Case (31),  343,  5.34 

Davis  v.  Armstrong  *344 

Davis  v.  Cbeevers 299 

Davis  V.  Child 2S1 

Davis  V.  Cilley *42(; 

Davis  V.  Ilarkness 231) 

Davis  V.  Henry 425,  *426 

Davis  V.  Leslie   277 

Davis  V.  Meretlith 548 

Davis  V.  Packard 41 

Davis  V.  iSturlevaut 188 

Davis  V.Wells Gil 

Davison  v.  Seal  Skins 2G3,  677 

Dawson  v.  Shaver 212 

J)ay  v.  Callow  . 493 

Day  v.  Springlield 5U4 

Dayton  Mining  Co.  v.  Seawell.  413 

Deacon  v.  Powers *391 

Dean  v.  Nelson *87,  *9(i 

Dean  v.  Gleason 590 

Dean  v.  Smith 510 

J^e  IJemer  v.  Drew 235 

De  Castro'  v.  Kichardson    12s 

Decker  v.  McGowan 5slt 

Deeson  v.  United  States 3G5 

De  <Troat's  Case 4s3 

De  Hart  v.  De  Hart 29s 

De  La  Guerra  v.  Benton 1G3 

Delavidge  v.  Vianna *109 

Delaware  Steam-boat  Case 3Gs 

Demarest  v.  Wickham 4(12 

Deming  v.  United  States *53s 

Denham  v.  Pogue 357 

])enning  v.  Clark G2o 

Dennison  v.  Collins 397 

Dennison  v.  Dennison 97 

Derbies  v.  Romero *101 


i)erby's  Case 34G 

De  K'ivafinoli  v.  Corsetti .509 

Detroit  (City)  v.  .Jackson 434 

Detroit,     etc..    Association,    v. 

Commissioners , 413 

Deuin-ce  v.  Dcuprec. 1G3 

De  Vaughn  v.  De  Vaughn 2.3 

Devlin  v.  Devlin Isi; 

Devlin  v.  United  States *360 

Dewitt  v.  Ackerman G13 

Dewitt  V.  Buchanan 110 

Dewitt  V.  Harvey G12 

Dexter  v.  Monroe 2G7 

Dias  V.  Merle 183 

Dickinson  v.  Chaml)er  of  Com- 
merce   *142 

Dickinson  v.  Wadsworth *387 

Dick  Keys  (The) 271 

Dicks  V." Hatch 48 

Dickson  v.  Railroad G5 

Diedrick  v.  Richlcy 433 

Diefendorf  v.  Oliver 537 

Dieter  v.  Smith 533 

Dillard  v.  Railroad 4G 

Diiworth  v.  Carter 300 

Dinet  v.  People 184 

Disosway  v.  Bank 293 

District  v.  Perkins 47G 

Dix  v.  Dummerston 443 

Dodd  V.  Hartford 5.s9 

Dodds  V.  Dodds G12 

Dodson  V.  Scroggs 48,  285 

l^oe  V.  Childress G4 

Doherty  v.  United  States 364 

Donahue's  Case 557 

Dorsch  V.  Rosenthall 128 

Doi'sheimer  v.  Rorback 248 

Dorwin  v.  Strickland 602 

Doublcday  v.  Sherman 188 

Dougherty's  Case 5G5 

Dow  V.  Chicago 589 

Dowling  V.  Todd 563 

Downin  v.  Sprecher 625 

Downing  v.  Florer *387,  399 

Dox  V.  Postmaster  Genera! 360 

Dovle  v.  Gray 545 

Drake  v.  Phillips .595 

1  )nike  v.  Smyth *I2S 

Dryer  v.  Abercrombie 526 

Dubois  v.  Sands 31 

Du  Boys  V.  Frouk 122 

I )nbuque  v.  Railroad 586 

Ducas  V.  King 613 

Ducasse  v.  Richard 59 

Dull  V.  Fisher 216 

1  )ugan's  Case 338 

Dugan  V.  Hunt 390 

Dugan  V.  Mayor 586 

Duncan  v.  Baker 133 

Dunham  V.  Chicago 585 


XXXll 


TA1U,E    OF    CASES. 


PilJiO 

nunlKim  V.  Stiito IS!),  l!i;5 

Diinlai)  V.  (iiillatiii  Co 5S7 

J)iiiincll    .Manutacturiii;^  Co.   v. 

I'avvtncUct ' 606 

Duniiicii  V.  Adiniiiistralor 2!I7 

Dunning  v.  Perkins 34(1 

Dii  Paiif  Co.  V.  Jenks.  .589,  595,  GOO 

DtiirnV.  Getclieli 442 

I )uilKnn  V.  S.  fj.  1.  Co 67 

DvtTs  V.  Jjindsay 115 

D^ynes  v.  Hoover 577 

Eagle  (The) 255 

Eastman  v.  Burleigh 440 

Eastman  v.  Co 227 

Kaston's  Case 2(is 

Eaton's  Case 5G4 

Echol's  Case .34 

Edmonds  v.  De  Kalb  Co 530 

Edwards  v.  Eallard 112 

Edwards  v.  Elliott 256 

Edwards  v.  Territory 128 

Ehey  v.  Engle " 104 

Ehle  V.  Quackenl)0.ss 388 

Eichelberger  v.  Hawthorne 295 

Eichelberger  v.  Sitt'ord 492 

Elder  v.  Hilzheini 114 

Eldred's  Case 550 

Elect(n-al  College  Case 552 

Ellett  V.  Pwwer^s 94 

Elliott  V.  Allen *311 

Elliott  V.  Black 388 

Elliott  V.  Johnson (i4 

Elliott  V.  Piersol 11 

Elliott  V.  Quiinby 446 

Ellis  V.  Gondnow 546 

Ellis  V.  Hilverstein 99 

Ellis  V.  Smith I(i4 

Ellsworth  V.  Moore 165 

Emerson  v.  Thompson 298 

Engle's  Case 552 

En.sminger  v.  People 457,  462 

Erskine  v.  llahnbach 602 

Erskine  v.  Van  Arsdale 604 

Ertel  V.  Bracken 74 

Eslava  v.  Lepetre 291 

Estes  V.  Carter 218 

P^ufaula  V,  ilickman 478 

Evans  v.  Robertson 225 

Everdell  v.  Bailroad 531 

Evergreen    Cemetery    Associa- 
tion V.  Xew  Haven 42.3 

Ewing  V.  Batzner 594 

Ewing  V.  Riddle 623 

Fabrinas  v.  jVIostyn *111 

Fairchild  v.  Lamson 537 

Fairfax's  Devisees  v.  Lessee. . . .  454 

Falkenburgh  v.  Cramer 4s 

Fanning  v.  Bank 548 


Page 

Fanshawl  v.  Tracy 182 

Farmers'   Bank  of  Kentucky  v. 

Collins *230 

Farnham's  Case 552. 

Fai-nsworth  Co.  v.  Rand 601 

i  Farrell  v.  Conklin 461 

'  Farrow  v.  Baker 514 

Faulkner  v.  David 610 

Fearny  v.  Cummings 535,  536 

Fee  V.  Iron  Co 75,  80 

j  Feeley's  Case 552 

Feizel  v.  M.  £.  Church 49G 

Fellows  V.  Heavmans i45 

I  Felt  V.  Felt 398 

j  Felter  v.  iluUiner 400 

J  Fenn  v.  Harrington *94 

Fenton  v.  Way 606 

Fci'guson  V.  Fergustm 559 

Ferguson  v.  Reed 616 

Ferrill  v.  Commonwealth 331 

Fei'ry  Co.  v.  Beers 266 

Ferry  Co.  v.  Boston 494 

Fess'ler  v.  Haas 52G 

Fetter's  Case 338 

Fidler  v.  Cooper 441 

Fiekl's  Case 568 

Field  V.  Commonwealth 466 

Field  V.  liandall 94 

Finch  V.  Finch 283 

Fink  V.  Newark 412 

Finnegan  V.  Fernandina. . .  .589,  601 

Fisher's  Case 553 

Fisher  v.  Board  of  Trade *142 

Fisher  v.  Hall 95 

Fisher  v.  Harndeu 11 

Fisher  v.  People 58!> 

Fisk  v.  Norvel 28T 

Fitch  v.  Waite 519 

Fitzpati-ick  v.  Beatty 247 

Flagg  V.  Bates 533^ 

Flat  Swamp,  etc.,  Canal  Co.  v. 

McAllister 3 

Fleet  V.  Youngs 38!> 

Fleming's  Case 475 

Flower  v.  Allen  . .  .■ 112 

Flovd  Co.  V.  Cerro  Gordo  Co. .  .*117 

Floyd  V.  Gilbreath 601 

Flvun  V.  Commonwealth 101 

Foley  V.  Hill 226 

Foley  V.  People 4  < 

Foot  V.  Stevens 23 

Ford's  Case 5.50 

Ford  V.  Babcock .31 

Ford  V.  Clough (i03 

Ford  V.  Commonwealth IGO 

Forest  v.  Forest 511 

Forrester  v.  Alexander 91> 

Fort  V.  Battle . .« 429 ,  441 

Fort  V.  West *162 

Foster  v.  Glazener 15(> 


TABLE    OF    CASES. 


XXXlll 


Page 

Foster  v.  Mc  Adams 393 

Foster  V.  United  States 3(J5 

Four  Cribs  of  Lumber 271 

Fowler  v.  Bishop 100 

Fraulv  V.  Lee 96 

Fredonia,  etc.,  V.  Wait 391 

Free  y.  Meikel 2-1:4 

Freeman  v.  Hartman 240 

Freeman  v.  Howe 152,*  350 

Fremont  v.  Mariposa  Co 590 

French  v.  Freeman 390 

French  v.  Holt 388 

French  v.  Insurance  Co 79 

French  v.  Richardson 442 

Fretz  V.  Bull 256 

Frisby  v.  Ballance 147 

Frizell  v.  Rogers 411 

Frost  V.  Brisbin 514 

Frue  V.  Loring 225 

Frumpton  v.  Pettis 404 

Fuller  V.  Bradley 615 

Fuller  V.  Grand  Rapids 99 

Fuller  V.  Jewett 539 

Fuller  V.  O'Brien 532 

Fuller  V.  Sparks 96 

Fuller  V.  State 214,  218 

Fuller  V.  Stephens 132 

Fulton  V.  Lot  lis 242 

Furber  v.  Chamberlain 434 

Gadden  v.  Pierson 529 

Gage  V.  Gage 616 

Gage  V.  Rohrliack 248 

Gage  V.  Schroder 71 

Gainty  v.  Russell 249 

Gallahd  v.  Gal  land 188 

Gale,  Administrator,  v.  3Iichie.   169 

Galveston  Co.  v.  Gorham 605 

Gamber  v.  Holben *93,  101 

Gamble  v.  Jordan 287 

Gannen  v.  Fritz 132 

Gardner  v.  Gardner 283 

Gardner  v.  L>y 137 

Gardner  V.  Thomas *111,112 

Garland's  Case 176 

Garlick  v.  Dunn 126 

Garr  v.  Gomez 444 

Garrand's  Estate 299 

Garrison  v.  Hoj't 394 

Gasheere  v.  Apple 522 

Gas-light  Co.  v.  Merrick 536 

Gatchett  v.  McCall 605 

Gates  V   Bennett ,t26 

Gates  V.  Wagner *;593 

Gault  V.  Wailis 169 

Gay  V.  Eaton 130 

Gebhart  v.  p]ast  Saginaw 47i} 

Gene.see  Chief  (The)    254,  255 

George  v.  Watson 288 


Page 

Georgia,  etc..  Loan  Association 

V.  McGowan 74 

German    Reformed    Church   v. 

Seibert 144 

Gest  V.  Railroad 149 

Getchell  v.  Chase 532 

Gibbons  v.  Bressmer 'I'ii 

Gibbons  v.  United  States 361 

Gibson's  Case 563 

Gibson  v.  Gibson 133 

Giles  V.  Ash 535 

Gill  V.  Stebbins 82 

Gillett  V.  McCarthy 527 

Gillett  V.  Richards *3y8 

Gillette  V.  Hartford 606 

Gilliam  v.  McJunkin 564 

Gilliland  v.  Administrator 296 

Gilmore  v.  Fox 598,  600 

Gilmore  v.  Jacobs 395 

Gilmore  v.  Norton 600 

Gimstead  v.  Buckley 168 

Ginn  v.  Rogers 48 

Glaser's  Case 352 

Glass  V.  Hulbert 244 

Glavecke  v.  Tijirina 164,  168 

Glaze  V.  Blake .399 

Glenn's  Case 367 

Glen  V.  Hodges *111 

Golson  V.  Nichoff .345 

Goltra  V.  Sana.sack 245 

Gonzales  v.  Alinor 278 

Gooch  V.  Stevenson 213 

Goodrich  v.  Hulbert 446 

Goodnow  V.  Moulton 606 

Goodwin's  Case Isl 

Goodwin  v.  Hallowell 404 

Goodwin  v.  Thompson 212 

Goram  v.  Merry *115 

Gordon's  Case 504 

Gordon  v.  Ogden 1U3 

Gore  V.  Masten (i02 

Gorham  v.  Millard *426 

Gosele  v.  Bimeler 611 

Goss  V.  Commissioners 522 

Gott  V.  Brigham 74 

Goudy  V.  Hall 71 

Gould's  Case 577 

Gould  V.  Atlanta 596 

Gould  V.  Glass 403 

Gould  V.  Torrance 136 

Gourley  v.  Shoemaker 122 

Governor  v.  Dodd 38 

Governor  v.  Woodworth 38 

Grady  V.  Hall 526 

Graham  v.  Dewitt. 290 

Graham  v.  Graham 619 

Graham  v.  Houghtalin, 295 

Graham  v.  Ringo 45 

Graham  v.  Stucken 509 


XXXIV 


TABLE    OF    CASES. 


Page 
Grand    Rapids    Bridge    Co.    v. 

I'raniic 458 

Graiul  Kapids  v.  Blakelej *607 

(iraiiiic"s  Case! 552 

(Tiant  ct  O'Barr's  Case 474 

Grant  v.  Lams 95 

(Tiant  V.  Lavis 45 

Grant  v.  National  Bank 34(5 

Graves  v.  Shocfelt 394 

Gray  v.  Larrimore 2-^.  42 

Gray  v.  ilaxwcll 530,  537 

Gray  v.  bteam-boat 28 

Gray  v.  Wilson , . .     65 

Greathouso's  Case 5(j4 

Grc't'ii  V.  ,Muuif()rd ; 589 

Green  v.  Spring 24S 

Gi  oen  Co.  v.  Ituse 299 

Greene's  Case 505 

Greene  v.  Darling 237 

Greene  v.  Tripp   53iJ 

Greenough's  Case 553 


Gres: 


Case 448 


Gregg  V.  Wyun 55)  I 

Gregory's  Case 564 

Gregory  v.  Gregory 616 

Gregory  v.  Kauouse *387 

Greslxam  v.  Peterson 509 

Griffin's  Case 553 

Griffin,  Administrator,  v.  Lomer    94 

Griffin  v.  Domiuguez 137 

Griffith  V.  Burton (;23 

Griffith  V.  Frazier 11,  288 

Grigg  V.  Landis 235 

Griggs  V.  Banks 527 

Grignon's  Lessee  v.  Astor 8,  2!:i 

Grim  v.  School  District 607 

Griswold  v.  Stonington 443 

Groome  v.  Guinn 483 

Grubbs  v.  Cotter 527 

Guernsey  v.  Lovell 393 

Guest  V.  BrookJvH *250 

Guilford  v.  Love! 32 

Guilford  V.  Maden 294 

Gurney  v.  Crockett 267 

Hacker  v.  Barton 221 

Hacke.tstown  Bank  v.  ^litchell  515 

Hackne}'  v.  State 218 

Haddock  v.  Waterman 7G 

Hadle}-  v.  Bryer.-, ,  .   526 

Haeberle  v.  Barringer 526 

Haggart  v.  Morgan *515 

Haines'  Appeal 234 

JJaines  v.  Haines. is4 

Hale  &  Home  v.  Lawrence....  412 

Hall  V.  Barnes    118 

Hall  V.  Bowker 54s 

Hdi  V.  Hall ,,[     44 

Hall  V.  Howd 30 

Hall  V.  Hudson 267 


Page 

Hall  V.  Wager 346 

Halls  Heirs  v.  Hall 2S9 

Halley  v.  Jackson *513 

Hallowbush  v.  McConnell 12 

Halstead  v.  Halstead 619 

Halstead  v.  Leaman *426 

Ham  V.  Railroad 47s 

Ham  V.  State 77 

Hambleton  v.  People   461 

Hamilton's  Case 179,  *502 

Hamilton  v.  Kneeland 211 

Hamilton  v.  Millliouse *393 

Hamilton  v.  State 332 

Hammond  v.  Baker 151 

Hancock  v.  Coiyer 533,  545 

Hancock  v.  Henderson .'     6-' 

Hancock  v.  Baker *3ll 

HandGokniining  Co.  v.  Parker*413 

Handy  v.  Xoonan 224 

Hanks  v.  Xeal 2>3 

Hanneban  v.  Nichols 510 

Hannewiukle  v.  Georgetown.  . .   5^9 

Hanson  v.  Willard. . ." 612 

Hany  v.  Randolph 131 

Hapgood  V.  Doherty 94,  97 

Hardcastle  v.  Railroad 477 

Hardeman  v.  Battersby 149 

Hardy  v.  31ills ' 612 

Harker  s  Case 55 

Harkness  v.  Frase.-s 241 

Harlan's  Estate 2^8 

Harlan  v.  Langliam 61'.! 

Harney  v.  Charles 5;i7 

Harney  v.  Railroad 591 

Hai'rington  v.  Brown 444 

Harrington  v.  Higham 439 

Harrington  v.  People 4o3 

Harriott  v.  Railroad sii 

Harris"  Case 557 

Harris,    Attorney    General,    v. 

Railroad ." 4,)^ 

Harris  v.  Deunr *S9 

Harris  v.  Executors 55 

Harris  v.  Insurance  Co 46,  71 

Harris  v.  Slaght 231; 

Harrison  v.  Harrison 296 

Harrison  v.  Pullman 9 

Hariison  v.  Vines 592 

Hart  V.  Smitji 589,  593 

Harter  v.  Christoph 244 

Hartman's  Case .51:4 

Hai-vey's  Case 3(i:( 

Harvey  v.  Tyler 25 

Harvey  V.  United  States 354 

Haskell  v.  Haven 404 

Hassam  v.  Day 612 

Hastings  v.  Farmer S2 

Hatch  V.  .Johnson 116 

Hatch  V.  Supervisors 40!i 

Hathaway  v.  Davis 525 


i 


TABLE    OF    CASES. 


XXXV 


Page 

Haven  v.  Needham ;jss 

Haven  v.  AVentworth 52!t 

llaverstick  v.  Trudell 203 

Hawes  v.  Maunej' 1(J8 

HawCS  V.  Orr 149 

Ilawey  v.  Dakin 67 

Hawkins  v.  Commonwealth ....   460 

Hawkins  v.  Sumpter  Co 601 

Hawthorne  v.  Colyer 533,  54;j 

Hay  V.  People 458 

Hayes  v.  Hayes ■. . . .  2D3 

Hay  ward  v.  Clark 534 

Hay  ward  v.  Ramsey 131 

Haywood  v.  Collins 58 

Haywood  v   Johnson *116 

Hazard  v.  Durant 190 

Hazen  v.  Essey  Co 420 

Headt  v.  Wetmore 193 

Hearne  v.  Brown *427 

Hearst  v.  Pujol 246 

Heath  v.  Bank 226,  248 

Heath  v.  Kent 55 

Heaton's  Case 624 

Hilbourn's  Case 333 

Hine  v.  Levee  Commissioners.  .*58S 

Heir.s  v.  Adams 284 

Heller's  Case 185 

Melioway  v.  Chiles 524 

Hemick  v.  Johnson 400 

rfelins  v.  Clifldbourn 274 

Hempley  v.  Schneider 96 

Henderson  v.  Allen 118 

Henderson  v.  Desberough 399 

Henderson  v.  Ivissara ,s2 

Henderson  v.  Pope 107 

Henderson  v.  Tennessee 81 

Hennen's  Case 467 

Henry  v.  Ellis 199 

Henry  v.  Gregory 592 

Henry  v.  Tilson  ' 101 

Henry  v.  Tupper 150 

Henslie  v.  iState 127 

Hepburn  v.  Jones 446 

Hepper's  Case 185 

Hercules  Life   insurance   Co.'s 

Case 345 

Heritage  v.  Wilfory 388 

ilernandez  v.  State 564 

Herren  v.  Campbell ,'  39s 

Heslep  v.  San  Erancisco 446 

Hess  v.  People , 585 

Heuistis  v.  .Johnson 225 

Hewett  V.  Lucas 233 

Heydenfelat  v.  Towns 164 

Heyward's  Ca.se 337 

Hey  wood  v.  Brooks 546 

Hickee'.s  Lessee  v.  Stewart 42 

Hickman  v.  Jones 16 

Hickman  v.  Painter 150,  226 

Hicks  V.  Chapman 547 


Pase 

Hidtlen  v.  Davidson 4ii 

Higbie  v.  Edgarton 185 

Higginbottom  v.  Short 618 

Higgins  V.  Deloach loi 

Hill's  Case 551 

Hill  V.  Carter *387 

Hill  V.  Crandall   l8s 

Hill  V.  Figley  603 

Hill  V.  Gregory 617 

Hill  V.  Hardy 3(H) 

Hill  V.  Proctor. 224 

Hill  V.  Wells 396 

Hillnian  v.  Werner 526 

Hilman  v.  Martin 94 

Hills  V.  Chicngo 5S(; 

Hills  V.  l)ay 612 

Hills  V.  Mills 49 

Hills  V.  Moore 527 

Hine  v.  Hussey 295,  300 

Hinze  v.  People *464 

Hitchcock  V.  Aiken 69 

Hoagland  v.Delawai  eTo\vn<;hip  593 

Iloirman  v.  Fitzwlllia)n 548 

Hoffman  v.  Sparling *123 

Hoffman  v.  AVetberell 530 

Hogan  V.  Steam-boat 266 

Hoglun  V.  Carpenter KiO 

Holcorab  V.  Cornish 392 

Holden  v.  Eaton 603 

H'.lker  v.  Parker 432 

Hollis'  Case *344 

Hollman  v.  Bennett 295 

H,olman  v.  Mayor 183 

Flolmes'  Case 339 

Holmes  V.  Governor 339 

Hollowa}'  v.  Chiles 524 

Holloway  v.  Holloway 499 

Homer's' Appeal  ....". 293 

Homestead  Co.  v.  Railroad  ....   605 

Honej'  V.  Davis 38 

Hooper  v.  Day *543 

Hoover  v.  Reilly 245 

Hoover  v.  Yoi'k 9 

Hoppe  V.  Byers 99 

Hopper  V.  Fisher 611 

Hopsen's  Case 551 

Horn  V.  Corvambias 526 

Horn  V.  Lockart 21 

Horton  v.  3IcClarv 619 

Horton  v.  Sledge.' 613 

Houghtaling  v.'  BaM 204 

Houghton  Co.  v.  Auditor 474 

Housh  v.  People 29 

Houston  V.  Aycock 625 

Howard  v.  Pierce. 506 

Howell  V.  Railroad 7'.» 

Howey  v.  Goings 610 

Howland  v.  Eldridge 491 

Hoyle(The) " 271 

Hoyt  V.  Smith 529 


XXXVl 


TABLE    OF    OASES. 


Page 

Hoxie  V.  Ellis 617 

Hoxie  V.  Vricc 249 

Hubbard  V.  Insurance  Co 122 

riuber  V.  Ziinmorman 435 

Murk  V.  Railroad 590 

Hudson  V.  Atchison  Co 599 

Hudson  V.  Executors 526 

Hulfv.  Kiplev 239 

Hurt' V.  Shepherd 132 

Huii-ii  V.  llii^s-s 8 

Hu'iihes'  Appeal 284 

Hun-hcs  V.  Devlin 612 

Huuiies  V.  Hughes 497 

Huglies  V.  Martin 46 

Hughes'  Adm'rv.  Stinson 16 

Hull  V.  Harris 190 

Hull  V.  Thomas 184 

Humphreyville  v.  Culver 71 

Hunnewell  v.  Taylor 613,  618 

Hunt  V.  Administrator 245 

Hunt  V.  Hunt 66 

Hunt  V.  Jennings 63 

Hunt  V.  Kockwell 100 

Hunt  V.  Wickwire 401 

Hunter  v  Chandler 463 

Huntinton  v.  Uisdon 533 

Huntress  v.  Eflingliam 410 

Hurd  V.  Slaten : . .   292 

Hurd  V.  Tombes 47 

Hulburt  V.  Hicks 530 

Huss  V.  Morris 243 

•Hutchius  v.  Johnson 429 

Hutts  v.  Hutts *124 

Hvam's  Succession 162,  168 

Hyatt  V.  Bates 230 

H3^de  V.  State 457 

Improvement  Co.  v.  Hoboken . .  250 

Infanta  (The) 260 

Inhabitants, etc., V.Aroostook  Co  410 

Inhabitants,  etc.,  v.  Essex 408 

Inhaliitants,  etc.,  v.  Griffin 443 

Inhabitants,  etc.,  v.  McCulloch.  407 
Inhabitants,  etc.,  v.  Norfolk  . . .  405 
Inhalntants,  etc.,  v.  Waldo  Co..  408 
Inhabitants,  etc.,  v.  Weir  .....  95 
Insurance  Co.'s  (Jase. .  .185,  345, 

349,  352 

Insurance  Co.  v.  Charles 603 

Insurance  Co.  v.  Collins 109 

Insurance  Co.  v.  Dickerson  .  .  ..*128 

Insurance  Co.  v.  Dunham 269 

Insurance  Co.  v.  Hicks 185 

Insurance  Co.  v.  Holbrook *544 

Insurance  Co.  v.  Johnson 7b" 

Insurance  Co.  v.  Judge *116 

In.surance  Co.  v.  Owen 58 

Insurance  Co.  v.  Pollock. .  .581,  596 

Insurance  Co.  v.  Portland 587 

Insurance  Co.  v.  Weeks 529 


Page 

Insurance  Co.  v.  Wilson 284 

Ireland's  Case 189 

Iron  Mountain  Co.'s  Case 348 

Ironsides  (The) 349 

Irwin  v.  Lee 495 

Irwin  V.  Scriber 285 

Isett  V.  State 64 

Ives  V.  Vanscoyoc 534 

Jack  V.  Railroad 74 

Jackson's  Case 559 

Jackson  v.  Dains 114 

Jackson  v.  Lumley 2 

Jackson  v.  Sherwood 395 

Jackson  v.  Steam-boat 256 

Jackson  v.  Warren 131 

Jackson  v.  Whitfield 398 

Jackson  v.  Wilkinson 397 

Jakewa\^  v.  Barrett 388 

James  v.  New  Orleans 606 

Janitor's  Case 132 

Janney  v.  Buel 225 

Jecker  v.  Montgomery 280 

Jetferson  City  v.  Railroad 603 

Jeffrey  v.  Owen *387 

Jeffries  v.  Hardin 48 

Jenks  V.  Osceola  Township 531 

Jenkins  v.  Fahey 624 

Jenkins  v.  Gillespie 432 

Jenkins  v.  Simms 9 

Jersey  City  v.  Fitzpatrick 415 

Jersey  City  v.  Lembeck *250 

Jerusalem  (The) 281 

Jewett's  Case 622 

Jewett  V.  Bowman *149,-*510 

Jewett  V.  Miller 162 

Jilz's  Case 558,  566 

Jochimsson  v.  Bank 28>i 

John  Jay  (The) 260 

Johns  v.  Smith 622 

Johnson's  Case 480 

Johnson  v.  Administrator 296 

Johnson  v.  Daltou *111,  112 

Johnson  v.  Francis 94 

Johnson  v.  Herbert 106 

Johnson  v.  Howard 541,  547 

Johnson  v.  Kimbro 113 

Johnson  v.  Lowry 523 

Johnson  v.  Von  Kettler 58 

Johnson's  Administrator  v.  Lon- 

guine 296 

Jones  V.  Hoffman 4s 

Jones  V.  Kenuicott *511 

Jones  V.  Sumner 589 

Jones  V.  United  States 359,  363 

Jones  V.  Winchester 45 

Jordan's  Case; 572 

Jordan  v.  Henry *395 

Juands  v.  Tavlor 279 

Judd  v.  Fox  Lake 592 


TABLE    OF    CASES. 


XXXVll 


Page 

Judevine  v.  Hatton 389 

Judge  of  Probate  v.  Laue 285 

Kahl  V.  Love 606 

Kaine's  Case 338,  551,  556 

Kane  v.  Clough 535 

Kane  v.  Fond  du  Lac 434,  446 

Karne's  Estate 611 

Karne  v.  People *J26 

Kart  haus  v.  Ferrar 435 

Kaufman  v.  Walker 626 

Keal  V.  Judge 55 

Kearnan's  Case 550 

Keiler's  Case 54i) 

Keenau  v.  Keenan 454 

Keiser  v.  Yandes 45 

Keith  V.  Harris 539 

Keith  V.  Insurance  Co 243 

Kelly's  Case 351.  392 

Kelly  V.  Crawford 443,'  444 

Kelly  V.  Hacket 162 

Kellv  V.  Hooper's  Executors.  . .     44 

KellV  V.  ]Madden 612 

Kelly  V.  Noyes 603 

Kelly  V.  iSage 3(t7 

Kellogg  V.  Coller 136 

Kellogg  V.  Kussell 348 

Kellogg  V.  Waite 548 

Kenipe's  Lessee  v.  Kennedy.. . . 

23,  24,  32 

Kendall  v.  Bates 430 

Kendall  v.  Stokes 476 

Kendall  v.  United  States 35,  476 

Kennedy  v.  Cochrane 110 

Kennedy  v.  Greer 12 

Kentuck}'  v.  Dennison 476 

Kentucky  v.  Governor 485 

Kerosene  Oil  Co.'s  Case 34s 

Kerrigans  Case 178 

Kesler  v.  Stark 616 

Keutzler  v.  Railroad 536 

Keyser  v.  Rice 7,  532 

Kidder  v.  Peoria 411 

Kilgore's  Case 179 

Kil bourne  v.  St.  John 591 

KinihairsCase 371 

Kimball  v.  Fisk 301 

King  v.  Canal  Co 61 

King  v.  Manufacturing  Co. . . .  *426 

King  v.  Parks 401 

King  V.  Thompson 527 

King  V.  Vanderbilt 123 

Kingbury's  Case 337 

Kingsland  v.  Frorsham 579 

Kirkpatrick  v.  Cooper 399 

Kitchen  v.  Crawford 77 

Kitchen  v.  Sheets 618 

Klaise  v.  State 169 

KIcimstuber  v.  Shoemaker 46 

Klingel  v.  Palmer *393 


Page 

Knapp  v.  Fisher *446 

Knight  v.  Clyde 5.'.<l 

Knole  v.  United  States 354 

Knowles  v.  Pickett *.'.93 

Knox  County  v    Davis 448 

Knox  V.  Gurnett 56,  63 

Kohler  v.  Knapp 298 

Kohlsaat  v.  Haguet 346 

Koin  v.  Mazuzan 388 

Koppell  V.  Heinrichs 65,  82 

Kruse  v.  W  ilson 56 

Kyle  V.  Kyle 72 

I^abadie  v.  Dean 127,  132 

La  C'oix,  Succession 163 

Ladd  V.  Kimball  97 

Ladd  V .  Parley 620 

Lainner  v.  Kelley 517 

Lake  v.  Jarrett   611 

Lamson  v.  Bradley 537 

Landis  v.  People 129 

Lange  v.  Benedict 32 

Langford  v    United  States 354 

Langham  v.  Boggs 97 

Lenning  v.  Carpenter 245 

Lansing  v.  Lansing 188 

Lansing  v.  Stone 217 

Lansing  v.  Treasurer 492 

Larch  (The) 263 

Larkin's  Case 128,  552 

Larkin  v.  Robbins 446 

Larrabee  v.  Knight 535 

Latbrop's  Case 349 

i^arned  v.  Matthews 289 

Latrobe  v.  Hayward 115 

Latticr  v.  Rachel 431 

Latticr  v.  Renshaw 617 

Lat timer  v.  Moriain *12b 

Lattourette  v.  Clark 76 

Lavicux  V.  Company 97 

Lawrence  v.  Emson 435 

Lawrence  (City)  v.  Killam 593 

Lawrence  (City)  v.  Miller 598 

Lawver  v.  Langhaus 71 

Lazell  V.  Lazell 293 

Leaches  Case 181,  184,  558 

L'Amoreaux  v.  Crosby 185 

Leary  v.  Reagan 119 

Leatliers  v.  Cannon 515 

Leavenworth  Co.  v.  State 497 

Lcavitt  V.  Harris 294 

Le  Barron  v.  Le  Barron 20.') 

Leddcl's  Executor  v.  Starr 292 

Leddo  V.  Hughes 271 

Lee's  Case 29s 

Lee  V.  Lee 622 

Lee  V.  Parrott 39'.) 

Le  Fever  v.  Larrawaj' 622,  62(1 

Legg  V.  Dorsheim 125 

Lc  Guen  v.  Gouverneur 232 


XXXVlll 


TABLE    OF    CASES. 


[jeiiih  V.  ]\rason 48 

l/liniiicil)lc' 2S0 

Lt'iuKird's  Case 504 

Le  Hoy  v.  Latham 266 

Le  Koy  v.  Railroad  Co 602 

Lerne  V.  Selin  285 

Lesler  v.  Ualtimore 604 

liOverton  v.  Waters 612 

Lewis  V.  Kemp 155 

Libtrel  v.  Field *441 

Lick  V.  Kay 248 

Liglitener  v.  Haiuineler 155 

Liii'htener  v.  iStciuagel 5o8 

Lilly's  Case 12^ 

I^iiKJcn  V.  Supervisors 501 

Under  v.  Brock 527 

Lindlay's  Case 370 

Lindsey  v.  Attornej^  General.  . .  459 

LindseV  v.  McClelland 48 

liinslcv's  Lessee  v.  Coats 212 

Liiiduff  V.  Plank-road  Co 101 

Linn  v.  Kyle 31 

Liiisenbigler  v.  Gourley 2ii9 

Litchtield  v.  Daniels 96 

Litclilield  V.  Polk  Co 598 

Litchtield  v.  Register,  etc 480 

Lister  v.  Wright *111 

Little's  Case 347 

jjittle  V.  Sinnett 32 

Lloyd  V.  Loring *141 

Lobsiger's  Case 366 

Lock  V.  Johnson 536 

Loclve  V.  Williams 300 

Loder  v.  Baker 530 

Ijognn  V.  Williams 77 

Ijondon  v.  East  Saginaw 604 

J^ondon  v.  Wilmington 5!t9 

Long  V.  Barker 224 

Long  V.  Hewitt 225 

Loomis  V.  Spencer 602,  603 

Loring  v.  Bridge 404 

Lorman  v.  Benson ,    .   212 

Lolt  V.  llultbard.... 602 

Lottawana  (The) 268,  2Sl 

Louderback  v.  Kosengrant 57i 

Loud  V.  C;har]cston 592 

Lovering  v.  Lamson lOo 

Lovett's  Executor  v.  Matthews.  287 

Lovett's  Executor  v.  State 3l2 

Low  V.  Kice 39(j 

Low  V.  Boss 389 

Lowenstein  v.  Lowenstein 433 

Lowry  v.  Holden 298 

Lucy  Ann  (The) 263 

Luddington  v.  Bell *517 

Ludlow  V.  Knox 183 

Ludlow  V.  Ramsey 90 

Luther  v.  Borden 20 

Lupton  V.  Almy 625 

Lvie  V.  Richards 2(»7 


Page 

Lyman  v.  Lyman 113 

Lynch's  Case 185 

Lyons  v.  Andrews 2SS 

Mabley  v.  Judge 3,  472 

Macey  v.  Allen 67 

J\[ack  V.  Grover 103 

Miickall  V.  Canal  Co 458 

Mackey  v.  Gray 397 

Macklat  v.  Davenport 148 

Jlacon  V.  First  National  Bank. .  595 

JMacoupin  Co.  v.  People 479 

IVIaduel  v.  Mousscaux 534 

3Iaggie  Hammond  (The) 278 

Magruder  v.  Randolph 96 

]\ragruder  v.  Swann 483 

Maguire  v.  Card 267  . 

Main  v.  School  District 97 

Maissonaire  v.  Sprague 283,  289 

Malady  v.  McEnery 168 

Malcolm  v.  Andrews *511 

Maloney  v.  Dows *111 

Maloney  v.  McCabe *111 

Manchester's  Case 554 

Manchester  v.  Burns 547 

Manchester  v.  Herrington 129 

ManhiU'dt  v.  Boderstrom 45 

Manheim's  Case 344 

3Ianley  v.  People 108 

jNLann  "v.  Blount 135 

Manners  v.  Manners 613 

Manufacturing    Co.    v.    Ames- 
bury ."^ 1307 

Mariierry  v.  Madison 5,  4^3 

March  v.  State 35 

:\Iarkel  v.  Evans 12^ 

Markham  v.  Powell 5it 

Marsh  v.  St.  Croix  Co 606 

M;irshall  v.  Craig  Co '•• 

Marshall  v.  Curtis 25'9 

Marshalsea  (The) 404 

JIarston  v.  Wilcox 291 

Martin's  Case 577 

Martin  v.  Bigelow 212 

3Iartin  v.  Harvey 55 

JIartin  v.  Jones 2^7 

Martin  v.  Thrasher 44* > 

Martine  v.  Lowenstein 132 

Mason  v.  Johnson 605 

Mason  v.  Thomas 135 

3Iaslerton  v.  Beers 241 

3Iastin  v.  Marlow 45 

Mathie  v.  Mackintosh 49 

Matlock  V.  Lane 96 

Matteson  v.  Rosendale 607 

Matthews  v.  Hobbs *566 

Matthews  v.  Morris.  , 388 

Mathewson  v.  Sprague 283,  2S9 

Mattingly  v.  Grimes 531 

Mauran  v.  Insurance  Co ■■'■-IS 


TABLE    OF    CASES. 


XXXIX 


Page 

Mauroc  v.  Almeida 260 

Max's  Case •''64 

Maxwell's  Case r)53 

Maxwell  v.  Rives 183 

"Maxwell  v.  Vansant 115 

Mayberry  v.  Kellv 6 

Mayor  v.  Baldwin 592 

Maj'or  V.  Furze 479 

Mayor  v.  Ploward -"isG 

Mayor  v.  3[cKee 5s7 

Mayor  v.  Hoot 531 

Mayor  v.  liowlaud 531 

Mays  V.  Taylor 116 

Mays' Heirs  V.  Administrator....  290 

^Ic  All  ley's  Appeal 146 

McCartan  v.  Vansick 190 

]\[cCartney  v.  Bostwick 237 

McCarty  v.  ]\Iarsli 453 

McCauley  v.  Weller 161 

MeClanev.  Newark 594 

McClane  v.  White 247 

McClary  v.  llartwell 414 

3IcClelian  v.  Dowling   475 

3IcCloskev  v.  McCorinick 226 

.^IcCollum  V.  White 514 

McComb  V.  Turner 441 

^leComb  v.  Weaver 1^4 

McConnell  v.  Kibbe., 611 

McCormack  v.  Bank  .' 105 

McCormick's  Appeal 295 

MeCorniick  v.  Ives 256 

McCormick  v.  Railroad 74,  79 

MeCorniick  v.  Siillivaut t>10 

McCormick  v.  Wheeler 133 

McDonald's  Case 55s 

McDonald  v.  Dickens 102 

McI)ou<ral  v.  Supervisors 531  ! 

McG(!e  V.  McGee 510 

.Mclliirs  Case 552 

]\Ic: Jinnis  v.  Curry *432 

^Icfxregor  v.  Clia-<e 547 

3Ic(luire  v.  Waterman 4~^2 

^Iclleary  v.  Wallen 47 

Mcllvaine  v.  Lancaster 539 

^leivean  v.  Turner 546 

]\[cK(;lvay  v.  Railroad 532 

JMcKicrnan  v.  ^lassinnill 515 

,McI.:iu,u4ilin  v.  3I(Lavi-lilin  . . .'.   300 

McLean  v.  Brown * 314 

McLean  v.  Cook 602 

McLean's  Executors  v.  W  adc...   2-^4 

.'VrcLelian  V.  McLelhm 623 

McMillan  v.  Siiiilh 4s0 

Mc.Mlnu  v.  llamiltnn 75 

]\Ic.Murray's     Adininistr.i'or    v. 

Hopper 122 

McXabb  V.  Bennett 106 

McNeill's  Case 26s 

McPike  V.  Pew 592 

McSlmn  v.  .AlcShan 5(;(i 


Page 

McVey  v.  McVey 295 

McVey  v.  United  States *90 

McVicker  v.  Beedy ,7,  77 

McWhinney  v.  Brinker 59S 

Me  Willie  v.  Van  Vacter 294 

Mead's  Case 367 

.Mead  v.  Norris 189,  190 

Meek  v.  McClure 60.5 

3leliar  v.  Simmons 2?^8 

Memphis  v.  Brown 5^4 

Memphis  v.  Laski 31 

^[emphis  v.  United  States 584 

Merchant  Insurance  Co.'s  Case 

349,  352 

Merchant  v  Merchant 300 

Jlercier  v.  Chase 293 

Merriraac  (The) 270 

Merritt  V.  Johnson 446 

Merwin  v.  Chicago 531,  541 

Messenger  v.  Holmes 120 

Metzger's  Case 339 

Meyer  v.  Dubuque  Co 477 

^Michigan  City  v.  Roberts 494 

3[ichigan  State  Bank  v.  Hastings    82 

Micou  V.  Ashurst 225 

.^liddlebrook  v.  State 179 

Middleion  v.  Low 483 

Milam  Co.  v.  Robertson 12S 

:Miles  V.  Collins 204 

Miile  Lacs  Co.  v.  Morrison 585 

Miller  v.  Administrator 2-8 

]\riller  V.  Barnes 285 

Miller  V.  Black 109 

Miller  v.  Cri.sswell 432 

Miller  V.  Davis 243 

Miller  v.  Dorsey 293 

Miller  v.  GrandV 590 

Miller  V.  McKcnzie .....   527 

Miller  v.  Palermo 462 

.Miller  v.  Seammin 239 

Miller  v.  Snvdcr 5.52 

3Iilligan's  Case 569,  571 

3Iilligan  v.  Poole 617 

.Mil lison  v.  Fisk 538 

Milton  V.  Commissioner 403 

Milwaukee,   etc.,   Canal   Co.    v. 

United  States 364 

Minis'  Adniinisti-ator  V.  3rims  ..   .300 

Mi  :ns  v.  West 537 

Minon  v.  Van  Nostrand 565 

Minor's  Case 371 

Mitchell's  Case 183 

Mitchell  V.  Commissioners 5.^9 

Mitchell  V.  Mitchell 243,   29G 

Mitchell  V.  Pitts 525 

Mitchell  V.  Steam-boat 266 

.Mitchell  V.  Tibbetts 107 

Mitlar  V.  Babcock 68 

Mix  V.  People 587 

Molina's  Case 366 


XL 


TABLE    OP    CASES. 


Page 

Molhm  V.  Tom-nco 67 

Mdiu'll  V.  nennisoii 2S6 

:Mons()M  V.  Chester oi' 

31ontaiiue  v.  Gaddis ;")21 

3I()iiliUik(The) 257 

Monteiev  Co.  v.  MeKee 52o 

Montsioinery  (City)  v.  Van  Dorn  545 

Montgomery  v.  Williamson 2j5 

Montidonico  v.  Page 531 

Moodv  V.  Nelson 424 

Mooefs  V.  ^medley 5S9 

Moon  V.  Cott 472 

Moore's  Case is9,  196,  3136 

Moore  v.  Allegheny 603 

Moore  v.  Christian 559 

Moore  v.  Hoisington 235 

Moore  v.  Magee 601 

Moore  v.  Moore 442 

Moore  v.  Packwood =*127 

Moore  v.  Keeves *400 

Mooie  V.  Smith 2^S 

Mora  V.  Zuzae 12 

Moran  v.  Masterton 114 

Moran  v.  Murphy 397 

Mordecai  v.  Stewart 150 

Moreland  v.  Bank 236 

Morewood  v.  Enequist 271 

Morsran's  Succession 618 

Morgan  v.  Allen lOl 

Morgan  v.  Avery 519 

Morgan  v.  Beloit 23(t 

Morgan  v.  Cam])I)ell 527 

Morgan  v.  Dudley 447 

Morgan  v.  Hammett 161 

Morgan  v.  King 21 1 

Moigau  V.  Lyon 118 

3Iorgan  v.  Nunes 514,  515 

3ror2:an  v.  Palmer 249 

3Iorgan  v.  Tapscott 265 

:Morrill  v.  Morrill G12 

;M orris  &  Johnson's  Case 4S6 

[Morris"  Case 4S7 

Morris  v.  Underwood   466 

?>Iorris  v.  Whitehead 181 

Morrison  v.  Moat *191 

Morrow  v.  Weed 77 

31orse  v.  Davis S91 

Morse  v.  Towns 547 

7»losos  V.  Julian 165,  167 

Moses  V.  Kearnev 473 

Moses  Taylor  (The) 257,  271 

Mullee's  Case 190 

Muller  &  Brenton's  Case 347 

Munkers  v.  AVatson 486 

]\luns  V.  Dupont 94 

Mnnsen  v.  ]\Iiller 595 

]^r.ni<im  V.  .Minor 591 

]VInrphy  v.  Evans 10?, 

Murphy  v.  Stale 477 

Muriav's  Case 565 


Pago 

Murray  v.  Stevens 477 

Murrav  v.  Van  Derlyn 389 

Murrill  v.  Butler.  . .' 94 

Murrv  v.  Smith 64 

Muscatine  v.  Railroad 591 

Mutual  Loan,  etc.,  Co.  v.   Mc- 

Go wan 580 

Jlyer  v.  Insurance  Co 524 

flyers  v.  People 40 

Myers  v.  Smith 534 

Mvers  V.  Trimble 1S4 

My  rack  v.  Jacks 622 

Nailor  v.  French 514 

Nathan  v.  King 535 

Naylor's  Administrator  v.  Mof- 

fatt 287 

Nazro  v.  Cragin 49 

Neill  V.  Keese 150 

Neis  V.  Fraw^zen 409 

Nelson  v.  Davis 245 

Nelson  v.  Goodykoontz *409 

Nelson  v.  Green 296 

Nelson  v.  Leland 256 

Nelson  v.  McCrary 204 

Nerac's  Estate 540 

Neth  v.  Crofut 602 

Nettletou's  Apjaeal 159 

Nevitt  V.  Gillespie 224,  227 

Newark  (City)  v.  Funk 545 

New  Boston  Petition 411 

Newcomb  v.  Town 394 

New  Haven,  etc.,  Co.  v.  Fowler  530 
New  Jersey,  etc.,  Railroad  Co. 

V.  Commissioners 45S 

Newman's  Case 481 

Newman  v.  Hammond *126 

Newman  v.  Livingston  Co 607 

New  Orleans  v.  Cassidy 585 

New  Orleans  v.  Steamship  Co . .   181 

Newport  Highwav  Case 411 

Nicholas  v.  Purczell 612 

Nicholls  v.  United  States 363 

Nichols  v.  Cornelius 566 

Nichols  V.  Giles 561 

Nichols  V.  Hastings 97 

Nichols  V.  Mitchell 617 

Nichols  V.  Nichols 615 

Nichols  V.  United  States *360 

Nickerson  v.  Chase 531 

Niellmankamp  v.  Ullman   181 

Nixon  v.  Dow^ney 70,  106 

Noble  V.  Peehles 445 

Noe  V.  Gibson 184 

Noland  v.  Busby 602 

Noonan  v.  State 212 

Norris'  Case 369 

Norris  v.  Bark 269 

Norristown,  etc.,  v.  Burket. . . .  389 
Northrup  v.  People 117 


TABLE    OF    CASES. 


XLl 


Page 

Norlon  v.  Hixon 238 

Norton  v.  Reed *24!) 

Norvell  v.  Tripp 603 

Norwich  (The) 272 

Noyes  v.  Byxljee 180 

Noyes  v.  Gould 44(5 

Nunda  v.  Crystal  Lake 599 

Oakland  v.  Whipple 586 

•Oakley  v.  Aiken 103 

■Oakley  v.  Aspinwall 70 

•Ober  V.  Gallaher *150,  152 

•Oberholson  v.  Harmon 240 

Oberly  v.  Lereh 619 

O'Brien  v.  Collins 533 

O'Brien  v.  Tallman 474 

O'Connor's  Case 564 

(^"Connor  v.  State 455 

Odell  V.  Culbert 94 

Odend'Hal  v.  Devlin 529,  534 

O'Dounell  v.  Harmon 244 

Ogden  V.  Stock *388 

Ogden  V.  Walker 589 

Oiilesby  v.  Helm 95 

O'Hara  v.  McConnell 625 

Ohse  V.  Bruss 67 

Oler  (The) 225 

Oliver  v.  Jeriiiaan 618 

O'Malia  v.  Wen'tworth 550,  553 

Onderdonk  v.  Mott 609 

On.lcrdonk  v.  Romlett 180 

O'Neil  V.  Martin 137 

Onimet  v.  Sirois 535 

Orme  v.  McPherson 510 

Ormsby  v.  Terry 623 

Orr's  Estate.  .  . ." 2>i6 

Osborne  v.  Butcher 391 

Osborne  v.  Schutt 534,  53G 

Osceola  Tri])e   of   Bed   Men  v. 

liost,  Administrator 142 

Othello  (The) 272 

Overly's  Executors  v.  Devisees  .  430 

Pacific  (The) 259 

Pacific  Hotel  Co.  v.  Lieb 596 

Packard  v.  Kino; 611 

Packman  v.  Meatt 618 

Padelford's  Case 372 

Page's  Ca.se 553 

Paint  (The) 270 

Palmer  v.  Davis 442 

J'almcr  v.  Napoleon  Township.  593 

Palmer  v.  Noyes 540 

Pasgond's  Case 372 

Parish  V.  Marvin 114 

Park's  Case 552 

Parky.  Cauley 121 

Parker  v.  Benjamin 243 

Parker  v.  Parker 510 

Parker  v.  Sbroi)sliirc 102 


Page 

Parks  v.  Fry 625 

Parks  V.  Miller 586 

Parmelee  v.  Johnson 39(i 

Parrott  v.  Neligh (J22 

Parsons'  Case 582 

Parsons  v.  Lyman 296 

Pate  V.  Shafer 104 

Patterson's  Case 369 

Patterson  V.  Blake 611 

Patterson  v.  Pratt 537 

Pattison's  Case 558 

Patton  v.  Campbell   226 

Patton  V.  Gates 545 

Patton  V.  Tallman 301 

Patton  V.  Wagner 611 

Paul's  Case 455 

Paul  v.  Arnold 95 

Paul  V.  Benton 94 

Paul  V.  Paul 623 

Pauline  (The) 267 

Paysou  V.  Dietz 349 

Peale  v.  Pliipps *350 

Pearce  v.  Atwood 396 

Pearl  v.  Harris 64,  *427 

Pearl  v.  Nashville 226 

Pearson's  Case *553 

Pearsons  v.  Raulett 490 

Peck  v.  Jcnness *350,  527 

Pendleton  v.  Prestridge 360 

Penn's  Case 347 

Pennebecker  v.   McDougal 94 

Penniman  v.  Redman 445 

Penniwit  v.  Foote 21 

People  v.  Adams 77,  326,  327 

People  V.  Albany  Railroad 467 

People  v.  Almy.' 298 

People  V.  Assessors  (N.  Y.) 501 

People  V.  Attorne}'  Geneial  (N. 

Y.) 497 

People  V.  Auditor  (Midi.) 489 

People  V.  Auditor  (N.  Y.)  492 

People  V.  Bacon 487 

People  V,  Baker 120,  121 

People  V.  Benjamin 180 

People  V.  Bennett 492 

People  V.  Board    of    Education 

(Mich.) 499 

People  V.  Booker *:)(\a 

People  V.  Brennan  187,  493 

People  V.  Brooks 531 

People  V.  Brower  184 

People  V.  Jirvan 189 

People  V.  Burke 331 

People  V.  Bush 3 

People  V.  Callaghan 469 

People  V.  Carpenter 466 

People  V.  Circuit  Court  (.Midi.)  503 

People  V.  Clark 41,  468,  500 

People  V.  Commis-^ioncrs  (HI.)..  478 
Peopb;  V.  Coiiiini^sioners (X. Y.)  479 


XliU 


TABLE    OF    CASES. 


People  V.  Contract insi-  Board  (N. 

Y) i^G 

People  V.  Cook 124 

People  V.  Curyea 498 

People  V.  Dannatt 4(3 

People  V.  Davis 117 

IVople  V.  De  Camp ISO 

People  V.  Detroit 475,  497,  583 

IVople  V.  Dwinelle 187 

People  V.  East  Saginaw 605 

People  V.  Edwards 500 

People  V.  FairbiHT 496 

People  V.  Fairchild 474 

People  V.  Ferris 478 

People  V.  Few *192 

People  V.  Folsom 213 

People  V.  Foos   409 

People  V.  FuUerton 552 

People  V.  Gas  Co.  (IST.  Y.) 495 

People  V.  Governor  (Mich.)-  •  -37,  38 

People  V.  Governor  (111.) 38 

People  V.  Gray 287,  565 

People  V.  Guerra 163 

People  V.  Hallett 487 

People  V.  Halse}- 501 

People  V.  Hartwell 466 

People  V.  Hatch 472,  475 

People  V.  Hayl 474 

People  V.  Head 477 

People  V.  Heaton 464 

People  V.  Heffernan 564 

People  V.  Hills 465 

People  V.  Humphreys 560 

People  V.  Hurst 55 

People  V.  Ives 486 

People  v.  Jacobs 185,  187 

People  V.  Jameson 487 

People  V.  Judge  (Mich.) 73,  480 

People  V.  Kling '.  .560,  562 

People  V.  Klokke  472 

People  V.  Koeber 30 

People  V.  Lawton 312 

People  V.  Leland 2 

People  V.  Loucks 477 

People  V.  Mahoney 160 

People  V.  ^lariue  Court  (N.  Y.)  505 

People  V.  Martin 476,  563 

People  V.  Mayer 550 

People  V.  3Icl'ausland 4(i9 

People  V.  McLeod 335,  564 

People  V.  ■Mead 490 

People  V.  Mercein 563 

People  V.  :Merrill 319 

People  V.  iliner 604 

People  V.  Mitchell ;j57 

People  V.  Moore 469,  487 

People  V.  Murray  312 

People  V.  Xevin.s 179 

People  V.  Xew  York 490 

People  V.  Otis 585 


Page 

People  V.  Otsego  oo 591 

People  V.  Pacheco 501 

People  V.  Phelps 553 

People  V.  Pillow 562 

People  V.  Kathbun 77,  328,  332 

People  V.  Reilley 553 

People  V.  Richardson 468,  557 

People  V.  Robinson 29 

People  V.  Railroad  (N.  Y.) 121 

People  V.  Railroad  (HI.) 458,  462 

People  V.  iScurgham 497 

People  V.  Secretary  of  State  (HI.)  485 

People  V.  Seymour 5b6 

People  V.  Shearer 491 

People  V.  Skinner 399 

People  V.  Smith 414 

People  V.  Solomon 476 

People  V.  Spalding 188 

People  V.  Stanley 308 

People  V.  Sturtevant 184,  185 

People  V.  Supervisors  (N.  Y.).. 

477,  482 
People  V.  Supervisors  (Cal.).482,  505 
People  V.  Susquehanna  Railroad  467 

People  V.  Sweetman 449 

People  V.  Taylor 500 

People  V.  Trustees  (111.) 472 

People  V.  Tyler 276,  325 

People  V.  Vermilvea 120 

People  V.  Watts.' 469 

People  V.  Webb 121 

People  V.  Weber 476 

People  V.  AVeston 487 

People  V.  Whitcomb 464 

People  V.  Wiaut 477 

People  V.  Wilcox 560 

People  V.  Wilson 107,  198 

People  V.  Woodbury 467 

People  V.  Wright .392 

People  V.  Yates  (Governor). 484,  501 
People's  Steam-ship  Co.'s  Case.   34>^ 

Peoria  v.  Kidder 232 

Perkins  v.  Corbin 55 

Perkins  v.  Perkins 289 

Perkins  v.  Pick 102 

Perrin  v.  United  States 371 

Perry  v.  Buss 601 

Perrv  v.  Dover 607 

Perry  v.  Milligan *446 

Perrv  v.  Periy 623 

Perry  v.  Weyman 396 

Peter  v.  Schlosser.  .' 96,  298 

Peterson  v.  Grover 236 

Peterson  v.  St.  Clair 533 

Petitt  V.  Black. .  .• 598 

Pettingill  v.  Railroad 542 

Peyton  v.  Robertson 501 

Phelps  V.  Harris 224: 

Phillips  V.  Welch 48,  187.  55S 

Piatt  V.  Eads 213 


TABLE    OF    CASES. 


XLlll 


Page 

Pickade  v.  Wade 98 

Pierce's  Case 183,  550 

Pierce's  (Louia's)  Case 558 

Pierson  v.  Finney 120 

Piirgott  V.  Ramev 299 

Pilgrim  v.  Miller"^ *393 

Pitcher's  Case 366 

Pitt  V.  Davidson 1  ^9 

Piatt  V.  Archer 352 

Piatt  V.  Briglit 422 

Piatt  V.  Harrison 5G4 

Piatt  V.  Longworth,  Execntor.  .  225 

Piatt  V.  Stewart 616 

Plumbly  V.  Commonwealth ....   308 

Plumer  v.  Marathon  Co 593 

Plummer  v.  AYebb  222 

Polk  Co.  V.  Hierb 75 

Pollavd's  Lessee  v.  Hagan 207 

Poltuer  V.  Russell 188 

Pomeroy  v.  Aiusworth 2i'4r 

Poole's  Case -:^'t:»< 

Porter  v.  Jones 243 

Porter  v.  Spencer 226 

Portland  Co.  v.  United  States.  .   364 
Portwood  V.  Montgomery  Co.  .  .  475 

Portwood  V.  Supervisors 583 

Potter  V.  Stevens 530 

Powell  V.  Boon 21 

Powell  V.  Brandon 20^i 

Powell  V.  Matthews 521 

Powers  V.  Gross *95 

Pratt's  Case  345 

Prater  v.  Robinson 232 

Pray  v.  Herber 297 

Prentiss  v.  Danaher 546 

Prentiss  v.  Parks 28 

Prescott  v.  Gouser 49s 

Preston  v.  Morrow *427 

Preston  v.  Preston 606 

Price  v.  Byne 424 

Price  v.  Crone 614 

Price  V.  Fc'rry  Co *416 

Price  V.  Kramer 5!i3 

Prigg  V.  Pennsylvania *15:2 

Prim  V.  Kabotsau 241) 

Probst  V.  Scott ■'I'Mj 

Propeller  Commerce  25(; 

Propeller  Swan 256 

Prospect  (The) 26i) 

Prosscr  v.  Secor   5s2 

Prout  v.  Grout 532 

Provine's  Case 371 

Pruitt  v.  Armstrong 532 

l^ryor's  Case 185 

Pu'uet   Sound  Agricultural   Co. 

V.  Pierce  Co.  ." *126 

I'uiih's  Ca.se .371 

Piigli  V.  United  States 362 

Pulaski  Co.  V.  Stewart 21 

Putnam  v.  New  Albany 154 


Pag& 

Quimby  v.  Hart 3--9 

Quinn  v.  Van  Pelt *121,  *123 

Quinney  v.  Stockbridge 592 

Quman  v.  Allport 77 

Ragan  v.  Harrell 388 

Railroad.  £x  parte  (Ala.) 487 

Railroad,  Ex  parte  (N.  Y.C.)*414^  423 
Railroad,  Ex   parte    (Lockport, 

etc.) 415 

Railroad  V.  Bowler's  Heirs 625 

Railroad  v.  Campbell 55 

Railroad  v   Clark 413 

Railroad  v.  Cleins 601 

Railroad  v.  Cobb *54 

Railroad  v.  Commissioners(Kan.)490 

Railroad  v.  Dayton 423 

Railroad  v.  Elizabethtown 599 

Railroad  v.  Elliott 99 

Railroad  v.  Evansville 44 

Railroad  v.  Express  Co.  (111.).  .  .  531 

Railroad  v.  Fort  Howard 590 

Railroad  v.  Gas  Co.  (IS".  Y.) .  . . .  *423 

Railroad  v.  Gordon 224,  422 

Railroad  v.  Horton 603 

Railroad  v.  Hughes 425 

Railroad  v.'  Judge  (Ky.) 187 

Railroad  v.  Killenberg 531 

Railroad  v.  Lake  (Town  of) *418 

Railroad  v.  Lawrenceburg 494 

Railroad  v.  Litton 99 

Railroad  v.  Manufacturing    Co. 

(N.J.) 231 

Railroad  v.  Mayor  (N.  Y.) 249 

Railroad  v.  McQueen 581 

Railroad  v.  McShane 599 

Railroad  v.  Meader 413 

Railroad  v.  Middlesex  Co 409 

Railroad  v.  Mitchell *119 

Railroad  v.  Napa  Co 479 

Railroad  v.  Nolan 5S1 

Railroad  v.  Oaks 109 

Railroad  v.  Paine 531 

Railroad  v.  Peacock 204 

Railroad  v.  People 5^5 

Pvailroad  v.  People  (111.) 415 

Railroad  v.  Peoples 531 

Uailroad  v.  Plymouth 409 

Railroad  v.  Pui'dy 395 

Rai Iroad  v.  Ragland 536 

Railroad  V.  Randolph  486 

Railroad  v.  Revnolds 534 

Railroad  v.  Railroad  (Me.) 181 

Railroad  v.  Railroad  (111.).  .  .422,423 
Railroad  v.  Railroad  (Mass.)  .  .  .  422 
Railroad  v.  Railroad  (Penn.).  .  .*422 
Railroad  v.  Railroad  (Ft.  Clark)  423 
Railroad  v.  Railroad  (N.  H.)  . .  .  24!> 

Railroad  v.  Russell 59:.5 

Railroad  v.  Stockton  (Cilv).421,  47.> 


XLIV 


TABLE    OF    CASES. 


Page 
K^iilroad  v.  Swavne's    Adniinis- 

Irator    " 2!'l 

Hiiilroiul  V.  Tclcoraph  Co.  (Ala.)  421 

liailniail  v.  'Plioinas 425 

Uailroail  v.  'Pow-boat 275 

Uailroad  v.  'I'urnor *415 

Ivailroad  v   Tyson 542 

Uailroad  v.  Van  Drelle 414 

Kail  road  v.  Webster  Co 606 

Kake  v.  Steam-boat  Owners 259 

Kaiusden's  C;asc 449 

Kaniscy  v.  Carhart 463 

KamscA'  v.  Worden 196 

Kand  v.  (commonwealth 308 

Kand  V.  Kand 136 

K;uKiall  V.  Brigham 176 

Kandcl  v.  Canal  Co 64 

Kandle  v.  Sutton 3s8 

Kaudolph  Co.  v.  Kails 48 

Kansom  v.  Mayo 266 

Kapud  V.  Gieen 46 

Kalhburne  v.  Acker 72 

Eausch  V.  Moore 526 

Kay  V.  Austin *445 

Kea  V.  Havden 45 

Kead  v.  Brown 300 

Keed  v.  Pratt 76 

Keeves  v.  Davis 400 

Keifsnyder  v.  Lee 530 

Keinders  v.  Koppelmann 617 

Remington  v.  County  Court 434 

Kemington  v.  Express  Co 517 

Kemington  v.  Foss 227 

Kensselear  Glass  Factory  v.  Reid  208 

Keppert  v.  Robinson 266,  272 

Rex  V.  City  of  London *46s 

Rex  V.  Croke *155 

Kex  V .  Saunders *464 

Reynolds  v.  McKenzie 225 

Reynolds  v.  Steam-boat 213 

Reynolds  v.  Zink 130 

Ivhddes'  Case LSI 

Rhodes  v.  Cushman  581 

Rhorer  v.  National  Bank *524 

Rice  V.  Hale 509 

Rice  V.  Nickerson 122 

Rice  V.  Parkman 3 

Rice  V.  Walker 474 

Richards  v.  People 184 

Richards  v.  Wapello  Co 605 

Richardson  v.  Brooks 224 

Richardson  v.  Lacey 533 

Richmond  V   Dayton ISO 

Robb  V.  McDonald 189 

Robbins  v.  State 329 

Roberson  v.  State *106 

Kol)crt  Morris  (The) 257 

Roberts'  Case 503 

Roberts  v.  Newbold *42S 

Rol)erts  v.  People 313 


Page 

Roberts  v.  Stalfield 273 

Robertson  v.  Bullion 142 

Robertson  v.  Clark 32 

Robertson  v.  Robertson 613 

Robinson  v.  Campbell 218 

Robinson  v.  Case 552 

Robinson  v.  Stanley 285 

Robinson  v.  West 50 

Rochambeau  (The) 271 

Rochester  Water  Commission- 
ers' Case 423 

Rochler  v.  Mechanics'  Aid  So- 
ciety   , 496 

Rodman  v.  Musselman 532 

Roderigas  v.  Savings,  etc 288 

Roderiguez's  Case 5S7 

Rogers^v.  Dill , 610 

Rogers  V   Green  bush 605 

Rogers  v.  Moultrie 400 

Rogers  v.  Perdue   67 

Roiling  Mills  Co.  v.  Robinson  . .  131 

Rood  v.  Mitchell  Co 535 

Rose  V.  Himely   13,  14,  43 

Rose  V.  Railroad 42 

Roseberry  v.  Hufl: 593 

Rosenblat's  Case 338 

Ross'  Case 308 

Ross  V.  Commissioners 585 

Ross  V.  Ross 225 

Ross  V.  Saulsbury 115 

Rothschild's  Case 366 

Rotsler  v.  Rotsler 526 

Rowland  v.  Thompson 623 

Royce  v.  Goodwin 159 

Rozier  v.  GrilHlh 615 

Rozier  v.  Johnson 615 

Rubl)er  Co.  v.  Good3'ear 288 

Rumsey  v.  Leek 442 

Runyan  v.  Morgan 523 

Rupp  V.  Swineford *120,  125 

Russell  v.  Lane 430 

Russell  V.  New  York 412 

Russell  V.  Russell 184,  610 

Russell  V.  AVilson 521 

Rust  V.  Frothingham 76 

Rust  V.  Vanvacter 5(!1 

Rutherford  v.  Holmes 17it 

Ryan  v.  Bindley 102 

Ryan  v.  Gallatin  Co 587 

Sackett  v.  Sackett 216 

Sacobi's  Case 34s 

Sage  v.  Heller 527 

Sailly  V.  Button 125 

Sale  v.  Court  of  Probate 290 

Sale  V.  Lawson 136 

Salmon  v.  Hanover 605 

Salon  V.  State 55 

Salscheider  v.  Ft.  Howard 597 

Salter  v.  His  Creditors 68 


TABLE    OF    CASES. 


XLV 


Page 

Salter  v.  Salter 29cS 

Salter  v.  Sample *388 

Sam's  Case 553 

Samuel  v.  Wiley 511 

Saiil)orn  v.  Beldon 415 

Sanl)orn  v.  Sanborn 58 

Sanbourne  v.  Smith ll(i 

Sanders'  Appeal 236 

Sanders  v.  Simmons 602 

San  Francisco  v.  Brader 525 

Sapp  V.  Administrator 530 

Saragossa  (Tlie) 269 

Sarah  Jane  (The) 267 

Sarah  (The) 275 

Sasscari  v.  Hammond    504 

Satlerlee  v.  De  Cormeau 187 

Savacoal  v.  Boiiuhton 603 

Savage   Manufacturing   Co.    v. 

Owings 403 

Savings  Association  v.  Lightner  603 

S-nv3'er  v.  Bryan 128 

Sawyer  v.  Sleam-boat  Co 216 

Scarborough  v,.  Reynolds 435 

Schaentgen  v.  Smith *124 

Schenk's  Case 553 

Schleister  v.  Kaymond 535 

Schlenker  v.  Tafiaferro 95 

Sclileisinger  v.  United  States. . .  364 

Schoif  V.  Bloomlield 434 

Schotield  v.  Perkerson 39 

School  Inspectors  v.  People.  .31,4*^2 

Schooner  Tilton  (The) 264 

Schooner  Tribune  (The) 267 

Schoonmaker  v.  Clearwater ....    162 

Scliori  V.  Stephens 624 

Schuhman  v.  Marley 204 

Schwickerath  v.  Cooksey 243 

Scofield  v.  Parsons 98 

Scott  V.  .Tones *17,  *20 

Scott  V.  Muore gi5 

Scroepel  v.  Taylor 393 

Scully  V.  Lowenstein 14 

Seaman  v.  Duryea 283 

Searle  v.  Galbr'aith 46 

Searsburg  Turnpike  Co.  v.  Cut- 
ler     395 

Seaver  v.  Robinson 73 

Sebring  v.  Whedon 400 

Secomb's  Case 176 

Secretary  v.  Mc(Tanah:tn  . . .  .497,  499 

Sedgwick  v.  Sh(!tlieid 346 

Seekins  v.  Goodale 601 

Seeley  v.  Pel  ton 425 

Seeley  v.  Peters 210,  211,  212 

Seigel  V.  Outagamie  Co.  ... 598 

Selden  v.  Vermilla 615 

Seralev's  Case 553 

Semple  v.  Anderson ]  2,  76 

Senichka  v.  Lone 585 

Sever  v.  Russell 298 


Page 

Seymour  v.  Ely 480 

Shallenberger's  Appeal 284 

Shannon  v.Frost 145 

Sharpe  v.  Administrator 2 

Sharpes  Ritie  Co.  v.  Rowan. ...  81 

Shaltuck  V.  State 181,  187 

Shaw  V.  Bank 74 

Shaw  V.  Dennis 602 

Shaw  V.  Nochtony *562 

Shaw  V.  Paine  . .'. 290 

Shawls  (194) 274 

Shaw's  Case 552 

Shawson's  Case 371 

Shea  &  Boyle's  Case 343 

Shean  v.  Cunningham 124 

Shearer  v.  Winston 612,  614 

Sheedy  v.  Bank 524 

Sheldon  v.  Newton 42 

Sheldon  v.  Risedorph 132 

Slielp  V.  Morrison 190 

Shepard  v.  Nabors 20* 

Shepard  v.  Ogden 45 

Shepard  v.  Taylor 260 

Shepard  v.  Watsons 443 

Sherwood  v.  Douthit 94 

Shield  V.  Dotard 525 

Shinborne  v.  County 583 

Shore  v.  Commissioner 403 

Shoemaker  v.  Brown 285 

Shoemaker  v.  Grant  County. . . .  606 

Shrewslmry  v.  Miller .' 32 

Shroyer  v.  Bash 446 

Sibbald  V.  United  States 13 

Sibley  v.  Howai-d 400 

Sibley  v.  Williams 213 

Sickles  V.  Borden 188 

Simon  v.  He'Mcigh 165 

Simmons  v.  Brainard 103 

Simmons  v.  C'ommissioner 333 

Simmons  v.  De  Bare 23 

Simmons  v.  Guyon .^)3.-, 

Simpson  v.  Call 122 

Simpson  v.  Hart 230 

Singleton  v.  3hidi.son 94 

Sinton  v.  Steam-boat 265 

Siren  (The) 281 

Slack  v.  Norwich 606 

Slaughter  v.  Gleason 232 

Slawson's  Case 371 

Sleeper  V.  Bullen 602 

Sloane  v.  Lindsay *577 

Slocum  v.  Steam,  etc.,  Co 28 

Sloop  Merchant  (The) 260 

Smethurst's  Case 184 

Smith  V.  Allen 233 

Smith  V.  Auditor 593 

Smith  V.  Biakeman 168 

Smitji  V.  Bo.ssard 432 

Smitii  V.  Brooke 546 

Smith  V.  Buchannon 547 


XLVl 


TABLE    OF    CASES. 


Page 

Smitli  V.  Bull *111 

Smith  V.  ('ollins 527 

Smitli  V.  Craig 294 

Sniilh  V.  Denman 106 

Smith  V.  Doak 150 

Smith  V.  Eiduu 45 

Smith  V.  Eng-le .■i2 

Smith  V.  Frisl)ic IHS 

Smitli  V.  Heimer 40o 

Smith  V.  Honey 103 

Smith  V.  Jones 117 

Smith  V.  Klrkpatriclc *+24 

Smith  V.  ilcLenden .•>57 

Smith  V.  Millett 530,  535 

Smit h  V.  Moore 500 

Smith  V.  Prvor 123 

Smith  V.  Kaih-oad 414,  425,  4-s 

Smith  V.  Keno 185 

Smith  V.  School  District *418 

Smith  V.  Sharp 124 

Smith  V.  Sweeny 442 

Smitli  V.  Vandeihurc: 133 

Smith  V.  Van  Xorstrand 4'  4 

Smith  V.  Virgin 441 

Smith  V.  Wells 72 

Smithee  v.  jNIoseley 474 

Smith's  Case  (Mormon  Prophet) 

28,  337,  345,  556 

Snodgrass  v.  Clark 294 

Snyder  v.  Van  Ingen 179 

Snyder's  Appeal 284 

Snowman  v.  Harford 189 

Soloman  v.  Reese 94,  95 

Southard  v.  Steele 436 

Spafford  v.  Richardson 67 

Spalding  v.  Preston 312 

Spalding  v.  Simms 518 

Spauldiug  V.  Record 27 

Spear  v.  Bicknell 390 

Speer  v.  Davis 559 

Speer  v.  Spear 617 

Spencer  Creek  Water  Co.  v.  Val- 

lejo 54 

Spencer  v.  School  District 531 

Spencer  V.  Wheaton 589 

SpeiTy  V.  Reynolds 106,  *394 

Spicer's  Case 369 

Spight  V.  Waldron 614 

Spradler's  Case 564 

Sprague  v.  Navigation  Co 534 

Spuatt  V.  Spratt 447,  453 

Spriggs  V.  Slate 63 

Springkook  Road  Case 127 

Springer's  Appeal 300 

Squair  v.  Shea 534 

Srassheim  v.  Jarman 586 

Sratel  v.  Maxwell 241 

Stackle  v.  Sil>ljie 591 

Staggers  v.  Washington 525 

Stalev  V.  Columbus 587 


Page 

Stamps  v.  Xewtou 44 

Stanley  v.  Barker 62 

Stanley  v.  Sutherland 522 

Stanton  v.  Crosby 106 

Starbuck  (The) 272 

Stark  V.  Jenkins *126 

Starnes  v.  Allen 526 

Starnes  Co.  v.  Smith 5j^5 

State  v.  Anthorne 407 

State  v.  Babcock 472 

State  V.  Baldwin 562 

State  V.  Bane 1 64 

State  V.  Banks 560 

State  V.  Batchelder 396 

State  V.  Becht 136,  185 

State  V.  Bell 6s 

State  V.  Bennett 332 

State  V.  Berrv 401 

State  V.  Bertheal 21s 

State  V.  Bilansky 214 

State  v.  Boal  . . .' 462,  463 

State  V.  Board  (Ind. ) 477 

State  V.  Board  (La. ) 480 

State  V.  Board  (Ohio) 474 

State  V.  Bonue\- 47 

State  V.  Bowen 461 

State  V.  Brauu 502 

State  V.  Bridge  Co 149,  418 

State  V.  Brown 507 

State  V.  Buchanan 219 

State  V.  Butler 122 

State  V.  Byers 5s4 

State  V.  Cahaba 462 

State  V.  Calhoun 5S3 

State  V.  Calvin 212 

State  V.  Campbell 392 

State  V.  Carson 172 

State  V.  Carter 319 

State  V.  Castle 410,  411 

State  V.  Chamber  of  Commerce.  *142 

State  V.  Chapin 329 

State  V.  Chargois 148,  166 

State  V.  Charfeston 500 

State  v.  Chase 483 

Slate  V.  Cheeseman ^   561 

Stale  V.  Church 100 

State  V.  Clark 469 

State  V.  Clark  Co.  Court 475,  503 

State  V.  Cohen 35 

State  V.  Commissioner  (Ala.)  .  .  475 

State  V.  Conuell 307 

State  V.  Copp 397 

State  V.  Central  Pacific  R.  Co.  .  58.") 

State  V.  Cummings 213 

State  V.  Curtis 467 

State  V.  Danforth 219,  220 

State  V.  Davis 4sO 

State  V.  Des  Londe 35 

State  V.  De  Vargas =--^5 

State  V.  Dohring 66 


TABLE    OF    CASES. 


XLVU 


Page 

.State  V.  Dotv 1H(J 

State  V.  Doyle 34,  473,  475 

State  V.  Dubuclet 485 

Slate  V.  Duikee 470 

State  V.  Elmore 4S2 

State  V.  Ely   30 

State  V.  Fagiu 553 

State  V.  Fenderson  550 

State  V.  Ferris 467 

StUte  V.  Fire  Commissioner  ....   474 

State  V.  Ford  Co 470 

State  V.  Fosdick   51 

State  V.  Fortinherry 52U 

State  V.  Frank's  Administrator.   243 

State  V.  Foundry,  etc., 495 

State  V.  Gall...' 498 

State  V.  Gamble 492 

State  V.  Gambo    527 

State  V.  Gardner 313,  4t;4 

State  V.  Gas  Co 4(3s,  495 

State  V.  Gatcheimer 30 

State  V.  Gibbs   495 

Slate  V.  Gleason 459 

State  V.  Goodman *313 

State  V.  Gracey   473 

State  V.  Grady 321 

State  V.  Hamilton  Co 583 

State  V.  Hays 36 

State  V.  Herron 187,  478 

State  V.  Hiljyer 218 

State  V.  Hoehin^uer 453 

State  V.  Hollenbeck 329 

State  V.  Huffschmidt 307 

State  V.  Intoxicating  Liquors  . .   164 
State  V.  Insurance  Co.  (La.) ....   592 

State  V.  Jackson 53 

State  V.  Jefferson 169 

State  V.  Jervey 602 

State  V.  Johnson 415 

State  V.  Jones   461 

State  V.  Judge 36,  54,  121,  505 

State  V.  Jumel 172,  474 

State  V.  Killlmck  Turnpike  Co..  415 

State  V.  Knight 315 

State  V.  Lupperle 457 

State  V.  La  Garde 497 

State  V.  Lawrence 457,  486 

State  V.  Lehre 465 

State  V.  Lucky 398 

State  V.  Lutz.' 602 

State  V.  Lyons 464 

State  V.  Marks 169 

State  V.  ISIayor  (N.J.) 499 

Stale  v:  McAlister *3s7 

State  V.  McCoy 120,  163 

State  V.  McUiarmid 463 

State  V.  McGeaghan *r24 

State  V.  Merrihew *123 

State  V.  Metzger 30 

.  State  V.  Minton 457 


Page 

State  V.  Moore 321 

Slate  V.  Morehead 540 

State  V.  IVIorris 521,  526 

State  V.  New  Haven,  etc.,  Co. . .  4'.t7 

State  V.  Newton *  120 

State  V,  Fainter  *'6\'o 

State  V.  Parker 130,  4".7 

State  V.  Penne}- 449 

State  V.  Pill.jimiy  (Mayor,  etc.).  475 

Slate  V.  Plainfiefd ' 413 

State  V.  P.jlice  Jury 475,  478 

State  V.  Poultner 5>-7 

State  V.  Railroad  Co.  (La.) 495 

State  V.  Railroad  Co.  (Alinn.)  .  .  479 

State  V.  Railroad  Co.  (Wis.) 468 

State  V.  Railroad  Co.  (Vt.).  .4(10,  461 

State  V.  Richmond 406 

Slate  V.  Roberts 127 

Slate  V.  Robinson 117 

State  V.  Rowan 119 

State  V.  Runnals 106 

State  V.  Sanderson 598 

State  V.  Sawyer 132 

State  V.  Schlemer 556 

State  V.  School  District  (Neb.)  .  478 

State  V.  Scott 41 

State  V.  Shields 467 

State  V.  Shumpert 52 

State  V.  Smith 55,  99,  472 

Stale  V.  SpurLeck 118 

State  V.  Stewart 307 

State  V.  Supervisors  (Wis.) 49.3 

State  V.  Taylor 4<^6 

Stale  V.  Thomas 168 

State  V.  Thompson 550 

State  V.  Thurmond 180 

State  V.  Tierney 4(;'i) 

State  V.  Tolan 469 

State  V.  Tomlinson 457 

State  V.  Tounsley 462,  463 

State  V.  Trent 498 

State  V.  Turnpike  Co.  (Ohio). . .  463 

State  V.  Vail 461,  463,  469 

State  V.  Wain  . . . .' 323 

State  V.  Ward *426 

Slate  V.  Warren 300 

State  V.  Webster 44s 

State  V.  Whittlemore 448 

State  V.  W illiams 333 

State  V.  Wilson 481 

State  V.  Wyckofl" 326 

State  Bank  v.  Woland  135 

State  Railroad  Tax  Cases 589 

Steady.  Lolb *439 

Sleam-boat  Gen.  Buell 271 

Sleam-boat  v.  Long 259 

Steamer  Petrel  v.  Dumont 262 

Stearley's  Appeal 44 

Slearn'v.  Wright 161 

Stearns  v.  Miller 600 


XI.Vlll 


TABLE    OF    CASES. 


Page 

yicliliins  V.  Kiillis Tiy? 

Sti'i'lc  V.  'I'liatchcr ^73 

Htc'cn  V.  SU;on 283 

IStfplicns  V.  Helmnn *522 

Stephens  v.  People 469 

Stephenson  Co.  v.  JManny WXi 

Stevens'  Case 453 

Stevens  v.  DillnKin jVJ') 

Stevens  V.  Kirk 546 

Stewart  v.  .Mix 161 

Stewart  v.  Pahiier 585 

Stewart  v.  Waters 156 

St.  Joseph  Co.  V.  Hickman 651 

Stiles  V.  Ueeman 294 

Stite  V.  Corporation •  •  •  • .   290 

Stitson  V.  Commissioners 132 

Stockbridge  Iron  Co.  v.  Iron  Co.  246 
Stockton  Railroad  Co.  v.  Stock- 
ton     475 

Stokely  v.  Robinson 433 

St.  Luke's  Cliurcli  v.  Stack 498 

Stone  V.  Pratt 237,  247 

Stoner  V.  Kins; 239 

Stor,v  V.  People *191 

Stoufa  V.  Xipple 521 

Stoughton  V.  JVIott 45 

St.  Peter  v.  Dennison 421 

Slramberg  v.  Heckman *108 

Strauford  v.  Green *436 

Strong  v.  Beronjon 429 

Strout  V.  Berry .' .390 

Stuart  V.  Ijudwick 242 

Stuart  V.  Maple 592 

Stuart  V.  Supervisors 227 

Studinger  v.  Newark 55 

Stupp's  Case 556 

Sturges  V.  Board  of  Tiadc *142 

Sturoe's  Case 192 

Sturtevant  v.  Tallman 299 

Sudbury  Parish  v.  Stearns 477 

Sullivan's  Case 566 

Sullivan  v.  Sullivan 614,  616 

Sullivan  v.  Vail   99 

Supervisors  v.  Arrighi 55 

Supervisors  v.  Klien 583 

Supervisors  v.Wingtield(Judge)*505 

Sumner  v.  Parker 404 

Surocco  V.  Geary 411 

Sutter  V.  San  Francisco 620 

Swain  v.  McRue 478 

Swan  V.  Gra}' 500 

Swertzel  v.  Rogers 82 

Swearinger  v.  Gulick 27 

Sweeny's  Case 369 

Sweet  V.  Brown 543 

Sweet  V.  Halbert 505 

Sweet  V.  Reed 517,  534 

Swift  V.  Larrabee 224,  227 

Swift  V.  Poughkeepsie 607 

Symmes  v.  Strong 97 


Page- 

Tabler  v.  Wiseman  . . 619 

Tali)Ot  V.  Hudson 417,  418,  421 

Talbut  V.  Hopper 127 

Talpey  v.  Doane 527 

Tapley  v.  Martin 65,  67 

Tappan  v.  Bank 589 

Tarble's  Case 550 

Tarbox  v.  Kennan 94 

Taslev  V.  Tasiey 237 

Tatem's  Ca.se *550 

Taylor  v.  Biddle *291 

Taylor  v.  Board  of  Health 604 

Taylor  v.  Burscup 292 

Taylor  v.  City 151 

Taylor  v.  Carryl 258,  *350 

Taylor  v.  Coryell 436 

Taylor  v.  Gardiner *119 

Taylor  v.  Gilpin 625 

Taylor  v.  Kehler 534 

TaVlor  V.  Koshetz 38S 

Taylor  v.  Lucas *124 

Taylor  v.  ^Murphy *579 

Taylor  v.  Elvers 521 

Taylor  v.  Phillips *609 

Taylor  v.  Royal  Saxon 264 

Taylor  v.  Railroad 74 

Tajior  v.  Smith 46 

Taylor  V.  State 63 

Taylor  v.  Thompson 590 

Teague  v.  Supervisors 409 

Tebbets  v.  Tilton 286 

Telegraph  Co.  v.  Bank 53 

Temple  v.  Bradley 102 

Territory  v.  Lockwood 461 

Terrett  v.  Taylor 215 

Teriy  v.  Sissou 536 

Texas  v.  White *l^ 

Thayer  v  .  Montgomery 391 

Thomas  v.  Alford 73 

Thomas  v.  Bartow 246 

Thomas  v.  Bibb 54 

Thomas  v.  Mahone 84 

Thomas  v.  Mead 505 

Thomason  v.  Craighead 622 

Thompson's  Case *344,  514,  564 

Thompson  »&  McClellan's  Case  .   343 
Thompson  v.  Brown(Garnishee)  536 

Thompson  v.  Cox 31 

Thompson  v.  Smith 535 

Thorington  v.  Gould *522 

Thormond  v.  Clark 245 

Thornton's  Case 486 

Thornton  v.  Leavitt 75 

Thornton  v.  Thornton 617 

Thorpe  v.  Foster *116 

Thorsen  v.  Schooner 266 

Thrasher  v.  Buckingham 540 

Thweatt  v.  Kiddoo 185 

Tiffany  v.  J^ord 106 

Tignor  v.  Bradley 526 


TABLE    OF    CASES. 


XLIX 


Page 

Tilloii's  Case 369 

'IMloii  V.  Palmer 614 

'I'iiidal  V.  Drake 610,616 

Tiiuleil  V.  Meeker 65 

Tiniiey  v.  Stebhins 611 

Tippacli  V.  Briant 48 

Tipton  V.  Chambers 103 

Titus  V.  Scantling 204 

Todd  V.  Caldwell 29S 

Todd  V.  United  States oii'.i 

Tome's  Apjieal 29i» 

Toomer  v.  Randolph 533 

Town  V.  Clark 207 

Treadwell  v.  Lawler 522 

Trego  V.  Lewis 95 

Tremain  v.  Richardson 138 

Tremper  v.  Brooks 531 

Trice's  Case 474 

Trotter  v.  Trotter i;i2 

Trout  V.  Drawhoru 395 

Trout  V.  Emmons 435 

Truesdall's  Appeal 591 

Tucker  v.  Bean ()25 

Turner  v.  Althans 603 

Turner  v.  Beachara 262 

Turner  v.  Commonwealth Isl 

Turner  v.  Franklin 603 

Turnpike  Co.  v.  Cutler 395 

Turnpike  Co.  v.  Wilson 123 

Tuctle  V.  People 66 

Twohig  &  Fitzgerald's  Case 550 

Tyler  v.  Beecher 416 

Tyler  v.  Bowlers 395 

Tyler  v.  Hamasley ]  7it 

Tyler  v.  People  . '. 320 

Tyrrell  v.  .Jones 394 

L'mbarger  v.  Chaboya 58 

Uiiderhill  v.  Van  Cortlandt. . . .  444 

Underwood  v.  Robinson 601 

Underwood  v.  West 241 

Union  Church  v.  Sanders 496 

United  States  v.  Ames 443 

United  States  v.  Anthony *3]3 

United  States  v.  Arredondo.2,  29,  39 

United  States  v.  Barney 304 

United  Stales  v.  Bevan 275 

United  Slates  v.  Burns 365 

United  States  v.  Caton 182 

United  States  v.  Coolidge.  ..221,  222 

United  Slates  v.  Crossley 610 

United  Statts  v.  Davis.  "77,  276.  326 

United  States  v.  Emerson 185 

United  States  v.  Fort  Scott 5^4 

Unit(;d  States  v.  Guthrie 34 

United  States  v.  Ifotliiian 503 

United  Stales  v.  Hudson 221 

United  Slates  v.  Justus 367 

United  States  v.  Kaufman *361 

United  States  v.  Kirkpatrick. .  .*360 


Page 

United  States  v.  Lee  Co 491 

United  States  v.  Macon  Co 584 

United  States  v.  McGill 276 

United  States  v.  M^'Inphis 584 

United  States  v.  Murphy 577 

United  States  v.  Muscatine  Co. .  4'.>1 

United  States  v.  O'Keith .'Kiii 

United  States  v.  Pacific  R.  Co..   5s7 

United  States  v.  Palmer 277 

United  States  v.  Pirates 27ii.  277 

United  States  v.  Pugh *371 

United  States  v.  Railroad(3)cars  314 

United  States  v.  Robinson 276 

United  States  v.  Russell 371 

United  States  v.  Scott 577 

United  States  v.  Smith 277 

United  States  v.  State  Bank.  .  .*361 
United  Slates  v.  Sterling  (City).  491 

United  States  v.  Taintor *313 

United  States  v.  Wilson 314 

United  States  v.  Wiltberger  ...  276 

Unsier  v.  Trumpliour 392 

Upton  V.  Railroad 65 

Van  Aerman's  Case 551 

Vanalla  v.  Anderson 131 

Vance  v.  Geib .544 

Vance  v.  Little  Rock 583 

Van  ell  v.  Church 46 

Van  Guisen  v.  Van  Houten 95 

Vannah  v.  Carney 440 

Van  Ness  v.  Packard 204,  212 

Van  Riper  v.  Berdan 613 

Van  Valkenlmrgh  v.  Evertson  .  400 

Varner  v.  Bevil 297 

Vase  V.  Morton 81 

Verac's  Estate 300 

Victor  Scale  Co.  v.  Shurtleff. .  .*5H 

Villavas  v.  Walker 188 

Virginia  v.  Rives 474 

Vogel's  Case. .    *350 

Voorhees  v.  Sessions 531 

Vose  V.  Willard 582 

Votan  V.  Reese 94 

Vowless'  Heirs  v.  Buckman  .  .  .  610 

Vfe(!land  v.  McClelland 297 

Wade  V.  Lobdell 298 

Wade  V.  Louton  94 

Wade  V.  Powell 432 

Wadhams  v.  Gay 225 

Wadsworlh  v.  Walliker 526 

Wagner  v.  Bisse'l 210 

Wagner  v.  Hallock 393 

Wait  v.  Mann 535 

Waite  V.  Prmceton 603 

AVaite  v.  Young 64 

Wakefield  v.  Gandy 45 

Walbridge  v.  Hall 32 

Walden  v.  Dudley 603 


TABLK    OF    CASES. 


Page 

Wales  V.  Willavd 404 

Walker's  Case 291,  553 

Walker's  Administrator  v.  Wal- 
ker    204 

Walker  v.  St.  Louis (i05 

Walker  v.  Zorn 533 

Walkleyv.  Muscatine  (City) .. .  4!tl 

\\  allaee  v.  Robinson 226 

Wallaee  v.  Anderson 4(32 

Wallace  v.  Castle 514 

Wallaee  v.  Cox 92 

Walsh  V.  Kav 120 

Ward  V.  Flood 499 

Ward  V.  Lathrop 109 

Ward  V.  McKenzie 521 

Ward  V.  R03' 75 

Ward  V.  Thompson 262 

Ware  v.  Gowen 534 

Ware  v.  Pereival ()02 

Waring  v.  Clark 254 

AVarren  v.  Coal  Co 226 

Warren   Manufacturing  Co.   v. 

[nsurance  Co 73,  80 

Warren  v.  Sullivan 535 

Washington  Park  Case 421 

Wassin  v.  Cone 74 

Waters'  Case 370 

Waters  v.  Langdon 67 

Waterloo  v.  Kailroad  Co 423 

AVaterman  v.  Root 116 

Watkins  v.  Blatsehinski 536 

\Vatkins  v.  Weaver ;!97 

Watson's  Case 2;'s 

AVatson  v.  Avery 146 

Watson  V.  Fuller 184 

Watson  V.  Nelson 179 

Watson  V.  Keissig 135 

Watson  V.  State 331 

Watson  V.  Watson 602 

Watson  V.  Williams 180 

Watts  V.  Hariling 96 

Wauzer  v.  Bright 73 

AVay's  Case 386 

Way  V.  W^ay 44 

Weaver  v.  Carpenter 70 

Weaver  v.  Davis 537 

Webb  V.  AY  right 114 

Weber  v.  llenliard 589 

Weber  v.  San  Francisco 590 

AYebster  v.  Gage 530 

AYebster  v.  Harwinlon 596 

AV^eed  v.  Ellis 428 

AYeeden  v.  Town  Council,  etc..     10 

AYeeks  v.  Smith 184 

AA'eizel's  Su:;cession 117 

AVelch  V.  Battau 527 

AA^'elch  V.  Byrnes 4<9 

VYelch  V.  St.  Genevieve 492 

Wells  V.  Commonwealth 189 

AYcUs  V.  Mitchell 299 


Page 

AVells  V.  People   514 

Wesson  v.  Newton 440 

AVest's  Appeal 467 

West  V.  Insurance  Co 458 

AYest  V.  State,  use,  etc 122 

AYest  V.  AA^est *455 

Westbrook  v.  AYicks 482 

Westcott's  Case 343 

AYestou  V.  Dane 494 

AYeston  v.  Stuart 442 

Wevand  v.  AYellcr ;!97 

AYiieut  V.  Railroad il44 

AVheatlaud  v.  Levering 73 

AA'heatou  v.  Peters 204 

Wheelau^s  Appeal 246 

AY  heeler  v.  Cobb , 5 15 

AYheider  v.  Harrison l'J9 

AYheeler  v.  Thompson 179 

AYheeloek  v.  Lee H 

AYhisler  v.  Corami.ssioncrs 413 

AYhlt(-()mb  v.  AA' hitconib 115 

AYhites  Estate 164 

AYhite  v.  Bird 538 

A\Tiite  V.  Conover 403 

AYhite  v.  Fo.v 433 

White  V.  Knapp 204 

AYhite  v.  Reagan 159 

AYhite  v.  Riggs 301 

AYhite  V.  Railroad 235 

AYhitraan  v.  Fisher *127,  225 

AYhitman  v.  Pownal 388 

AYliitney  v.  Bowen 388 

AYhitney  v.  Sears ^02 

AYliittaker  v.  Jonesville 595 

W^hitehouse's  Case 565 

AYhittem  v.  State 181,  182 

AYight  v.  Meredith 125 

\Y  ight  v.   Warner 32 

AYighlman  v.  Carlisle 91 

Wightraan  v.  Wallbaum 21il 

AYilco.x  v.  Sinuletarv 436 

Wilder  v.  Shea ' 531 

AVlldman  v.  Rider 45 

AYilhelms  v.  Noble 96 

AYiJkius  v.  Marshall 514 

Willamette  Co.  v.  Gordon 289 

AY  i Hard's  Appeal 290 

Willard  v.  Collamer 95 

AYiliiam  Bagalev  (The) *365 

AYilliam  D.Rice  (The) 265 

Williams'  Ca.se 559 

Williams  v.  Benedict *3."0 

Williams  v.  Boardman 53ii 

AYilliams  v.  Dwindle 184 

AYiliiams  v.  Holmes 300 

Williams  v.  Jones 538 

AYilliams  v.  Kenney 541 

Williams  v.  Reinuy 599 

Williams  v.  Saunders 500 

AYilliams  v.  AYiltou 103 


TABLE    OF    CASES. 


LI 


Page 

Williams  v.  Ynunc' ■)34 

Willis  V.  Ehim...": 127 

Williston  V.  Jiaihvav 7!1 

Wills  V.  Whittcll.  .." (J7 

Wilson  V.  Burnt-v 5.!(j 

Wilson  V.  IlathaWay 411 

W  ilson  V.  Mayor 592 

Wilson  V.  Territoij' 179,  l^o 

Wilson  V.  Wilson 1(15 

Wilson  V.  Yoiint;- 4.).') 

Wilson  V.  Zeiiiler lOiJ 

\\'in(iliam  v.  Coniniiss'oncrs  .  .  .  4'l3 

Windsor  v    .Mc'Vci^Ii 105 

Winfl)iXMiiu'r  v.  Coldci- 14G 

Winn  V.  Alhcrl 1411 

Winn  V.  Frelc 48 

Winser  v.  (iiiggs 4;U 

Winsten's  Cas  • :)r)2,  .i(!4 

Winston  v.  Ewinu' ;i:j4 

Winterfield  v.  Kailroad .136 

WintertiL'ld  v.  Strauss 380 

Winters  v.  Heirs 477 

NVinters  v.  Hehn 13") 

Wise  V.  Witliers 391 

Wiswall  V.  Sampson *3r)U 

Witter  V.  Lyon Is9 

•Wood  V.  Fithian 39") 

Wood  V.  M  .rvine 131 

Wood  V.  Matthews 2<9 

Wood  V.  Pi-eseott 390 

Wood  V.  Kailroad 443 

Wood  V.  Stone 293 

Woodbridge  v.  Morse 530 

Woodbury  v.  Maguire 4(i 

Woods  V.  Syinmes 511 

Woods  V.  Van  Uankin 121 

Woodword  v.  Ellsworth 593 


Page 

Woodward  v.  Lincoln 293 

Wool  folk  V.  Ingram 527 

W^orsham  v.  Richards ',• 

Worthen  v.  Badgett 594,  595 

Wortm:in  v.  Griffith 260 

Woven  Tape  Skirt  Co.'s  Case. .   18!^ 

W  right  V.  Evans *432 

Wright  V.  Hay  ward 7(1 

Wright  V.  People 458 

Wiight  V.  Smitli 90 

Wright's  Adaiinistrator  v.  Wil- 
kinson     300 

Wyatt  V.  Benson 427 

Wyat  t  V.  .ludge 48 

VV^yatt's  Adnimisti-ator  v.  Steele  287 
Wyman  v.  Hoover 132 

Yarliorough  v.  Leggett 431 

Yates  V.  Attorney  General 474 

Yeatman  v.  3Ialtison 424 

Yoe  V.  ^NfeCord 131 

Yore  V.  Steam-boat 137 

Yoiile  V.  I'l-otheiton 397 

Young  V.  ('amphell so 

Young  V.  Kinney *426 

Young  V.  Xelson 521 

Young  V.  Ship 2lJG 

Young  V.  United  States *36() 

Youiigblood  V.  Sexton 59G,  599 

Youngblood  v.  Youngblood 239 

Younger  v.  Insurance  Co 2(59 

Yule  V.  Yule 510,  511 

Zellncr  v.  United  States 364 

Zinuiun-  v.  Davis 534 

Zobieskie  v.  Bander 123 

Zorger  v.  Kapids 592 


THE 

JURISDICTION  OF  COURTS. 


PART    I. 
ELEMENTARY   PRINCIPLES 


CHAPTEK  I. 

JURISDICTION    DEFINED. 

$  1.  Etymology  of  the  word  "Jurisdiction." 

2.  Limits  of  jurisdiction. 

3.  Uetinition  by  the  United  States  supreme  court. 

4.  Plaintiff 's  right  confers  the  jurisdiction. 

5.  Distinction  between  judicial  and  ministerial  acts. 

6.  Judging  the  constitutionality  of  statutes — justices  of  the  peace,  etc. 

v^  1.  The  word  jurisdiction  is  derived,  with  hut  a  slight 
change  of  form  and  none  of  meaning,  from  the  compound 
Latin  word  jurisdictlo,  signifying  a  speaking  of  justice  or  of 
r.ght.  It  tlierefore  consists,  primarily,  of  judging  causea 
according  to  the  law,  wherein  rights  are  actually  disputed; 
and  is  secondarily  applied  sometimes  to  the  limits  of  territory 
within  which  the  right  to  judge  thus  is  exercised. 

§  2,  Hence  it  is  no  part  of  the  business  of  courts  entrusted 
with  the  high  prerogative  of  jurisdiction,  that  is,  speaking 
justice,  to  take  cognizance  in  any  manner  of  mere  questions 

(1)" 


2  JURISDICTION    DEFIXED. 

of  law,  wherein  no  rights  are  actually  disputed,  nor  to  extend 
the  jurisdiction  in  even  an  actual  case  beyond  the  limits  of 
the  essential  controversy  concerning  the  rights  involved. 
Even  in  the  highest  courts,  therefore,  obiter  dicta  are,  of  ne- 
cessity, extra-jurisdictional,  and  hence  are  not  to  be  regarded 
as  a  declaration  of  the  law.  And  in  order  to  give  any  court 
jurisdiction  of  the  subject-matter,  so  as  to  enable  it  to  malis 
orders,  or  issue  process  even,  a  suit  must  be  instituted 
therein. (rt)  Although  in  an  actual  suit  the  parties  may  agree 
upon  the  facts,  and  have  the  court  declare  the  law  arising  on 
those  facts,  this  agreement  must  be  strictly  confined  to  matters 
involved  in  the  cause,  and  not  extended  to  disconnected  cir- 
cumstances.(ft)  .  And  it  is  provided,  in  some  states,  that  an 
affidavit  must  be  made  as  to  the  reality  of  the  controversy 
involving  the  facts  agreed  upon.(c)  And  it  has  been  held 
that  where  a  cause  even  has  the  appearance  of  being  ficti- 
tious, it  will  be  dismissed,  unless  an  affidavit  of  its  reality  is 
filed. (J)  Nor  will  a  court  entertain  a  suit  merely  for  the 
purpose  of  declaring  that  one  who  claims  to  have  a  right 
which  may  arise  thereafter,  has  no  such  right,  (c) 

§  3.  And  accordingly  the  suprjme  court  of  the  United 
States  has  succinctly  defined  jurisdiction  thus:  "The  power 
to  hear  and  determine  a  cause  is  jurisdiction;  it  is  'coram 
judice,'  whenever  a  case  is  presented  which  brings  this  power 
into  action;  if  the  petitioner  states  such  a  case  in  his  petition 
that  on  a  demurrer  the  court  would  render  judgment  in  his 
favor,  it  is  an  undoubted  case  of  jurisdiction :  whether  on  an 
answer  denying  and  ijutting  in  issue  the  allegations  of  the 
23etition,  the  j^etitioner  makes  out  his  case,"  etc.(/) 

§  4.-  It  is  the  character  of  the  suit  on  the  part  of  a  plain- 
tiff which  gives  the  right  of  jurisdiction  to  a  court,  so  far  as 
the  subject-matter  is  concerned ;  and  not  of  the  defence  thereto. 
Where  a  statute  grants  a  right,  jurisdiction  attaches,  even  if 

{a)Ex  parte  Cohen,  6  Cal.  318.  (^').Tar'kson  v.  Lumlcv,  21  En'j;.  L. 

(JjBlair  v.  iState  Bank,  8  Mo.  31.3.  &  E.  13. 

(?)Sharpe  «.  Adm'r,  27Ind.  507.  (/)  U.   13.   v.   Arredoudo,    6    Pet. 

{d)'Peop}e  ex  rd.  «.  Leland,  40  111.  700. 
118. 


JurasDiGTiox  defined.  3 

another  statute  may  make  a  certain  circumstance  a  bar  to 
that  right, ((/)  if  i)leacled  by  the  del'endant. 

§  5.  Jurisdictional  or  judicial  acts  are  to  be  carefully  dis- 
tinguished from  ministerial  acts,  for  not  all  acts  performed 
by  a  judicial  ol'ticer  are  therefore  judicial,  since  such  an 
officer  may  be  enjoined  by  law  to  act  ministerially  also,  as  for 
example  in  appointing  an  officer;  and  otherwise  empou^ered 
by  law  to  act  ministerially,  as  in  acknowledging  a  deed,  or 
solemnizing  a  marriage. (Z^) 

And  it  has  been  even  held  that  although  a  power  is  del- 
gated  to  courts,  it  is  not  therefore  of  necessity  judicial; 
and  that  a  legislature  may  authorize  directly  in  a  particular 
case  a  sale  of  lands  belonging  to  minors,  so  as  to  transmute  real 
estate  into  j^ersonal  property. (i)  But  I  think  the  soundness 
of  this  doctrine  may  well  be  called  in  question,  at  least  so  far 
as  this  application  of  it  is  concerned.  The  North  Carjlina 
court  say:  "We  are  of  opinion  that  a  power  to  appoint  ap- 
praisers to  assess  the  benefits  to  lands  affected  by  a  canal  is 
not  exclusively  judicial. "(_/)  But  I  cannot  understand  that 
anything  inseparable  can  be  partly  judicial  and  partly  other- 
wise. If  a  single  act  is  judicial  at  all,  it  must  be  excluslvebj 
so,  I  think. 

§  (!.  Although  statute  law  is  often  itself  a  source  of  juris- 
diction, and  a  guide  and  limitation  thereto,  yet  it  is  manifest 
it  may  pass  under  the  exercise  of  jurisdiction  as  well  as  per- 
sons, and  things  disputed.  This  is  the  case  when  the  ques- 
tion of  the  constitutionality  of  a  law  arises  in  a  suit — a  ques- 
tion, however,  which  can  never  arise  where  there  is  no  written 
constitution,  and  the  legislature  is  omnii^otent,  like  the  Eng- 
lish parliament.  And  so  in  a  leading  case,  in  1803,  the 
supreme  court  of  the  United  States  say:  "Certainly  all  those 
who  have  framed  written  constitutions  contemplate  them  as 

(,7) Boone  «.  Poiiulextcr,  12  S.  &  M.  moved  by  the  defendant  in  the  mnn- 

(Miss.)  647.  ner  prescribed  by  statute.     Mabiey 

Nor  can  a  court  deprive  a  plain-  «.  Judge,  41  Mich.  37. 

tifl'  of  his  right  of  election  between  (7i)People  t\  Bush,  40  Cal.  34(!. 

difVercnt  courts  in  whi-ch  he  may  {i)\\\ce  v.  Parkmin,  16  Mass.  328. 

bring  his  action,  or  refuse  to  retain  (j)Flat  Swamp,  etc.,  Canal  Co.  v. 

jurisdiction,  unless  the  cause  is  re-  McAlLster,  74  N.  C.  163. 


4  JURISDICTION    DEFINED. 

forming  the  fandamental  and  paramount  law  of  tlie  nation, 
and,  consequently,  the  theory  of  every  such  government  must 
be  that  an  act  of  the  legislature  repugnant  to  the  constitution 
is  void.  This  theory  is  esssn'ially  attached  to  a  written  con- 
stitution, and  is,  consequently,  to  be  considered  by  this  court 
as  one  of  the  fundamental  principles  of  our  society.  If  an  act 
of  the  legislature  repugnant  to  the  constitution  is  void,  does 
i:,  notwithstanding  its  invalidity,  bind  the  courts  and  oblige 
them  to  give  it  effect ;  or  in  other  words,  though  it  be  not  law, 
does  it  constitute  a  rule  as  operative  as  if  it  was  a  law?  This 
would  be  to  overthrow,  in  fact,  what  was  established  in  theory, 
and  would  seem  at  first  view  an  absurdity  too  gross  to  be 
insisted  on.  It  shall,  however,  receive  a  more  attentive  con- 
sideration. 

"It  is  emphatically  the  province  and  duty  of  the  judicial 
department  to  say  what  the  lavv  is.  Those  who  apply  the 
rule  to  particular  cases  must  of  necessity  expound  and  inter- 
pret that  rule.  If  two  laws  conflict  with  each  other  the  courts 
must  decide  on  the  operation  of  each.  So  if  a  law  be  in  op- 
position to  the  constitution.  If  both  the  law  and  the  consti- 
tution apply  to  a  particular  case,  so  that  the  court  must 
either  decide  that  case  conformably  to  the  law,  disregarding 
the  constitution,  or  conformably  to  the  constitution,  disre- 
garding the  law,  the  court  must  determine  w^iich  of  these 
conflicting  rules  governs  the  case.  This  is  of  the  very  essence 
of  judicial  duty. 

"If,  then,  the  courts  are  to  regard  the  constitution,  and  the 
constitution  is  superior  to  any  ordinary  act  of  the  legislature, 
the  constitution,  and  not  such  ordinary  act,  must  govern  the 
case  to  which  they  both  apply.  Those,  then,  who  controvert 
the  princijDle  that  the  constitution  is  to  be  considered  in 
court  as  a  paramount  law,  are  reduced  to  the  necessity  of 
maintaining  that  courts  must  close  their  eyes  to  the  constitu- 
tion, and  see  only  the  law.  This  doctrine  would  subvert  the 
very  foundation  of  all  written  constitutions.  It  would  declare 
that  an  act  which,  according  to  the  ]3riiieiples  and  theory  of 
our  government,  is  entirely  void,  is  yet  in  practice  completely' 
obligatory.    It  would  declare  that  if  the  legislature  should  do 


JURIGDICTION    DEFINED.  5 

what  is  expressly  forbidden,  such  acts,  notwi  hstanding  the 
express  prohibition,  are  in  reality  effectual.  It  would  be  giv- 
ing to  the  legislature  a  practical  and  real  omnipotence  with 
the  same  breath  v/hieh  professes  to  restrict  its  powers  within 
narrow  limits.  It  is  prescribing  limits,  and  declaring  that 
those  limits  may  be  passed  at  pleasure. "(/j) 

It  seems  to  be  a  necessary  conclusion  from  tlio  foregoing 
remarks,  the  power  discussed  being  declared  to  be  "of  the 
very  essence  of  judicial  duty,"  that  all  courts  of  a  higher  or 
lower  degree  must  possess  authority  to  determine  the  ques- 
tion of  constitutionality.  And  I  see  no  reason  why  even  a 
justice  of  the  peace  may  not  exercise  the  authority  as  belong- 
ing to  the  "essence"  of  his  "judicial  duty."  And  yet  it  has 
been  argued  that  "all  officers  of  the  law,  whether  judicial  or 
ministerial,  or  inferior  or  superior,  are  bound  to  know 
whether  a  law  exists  or  not.  But  when  a  law  does  exist, 
inf^'rior  courts  and  ministerial  officers  are  not  bound  to  know 
whether  it  is  constitutional  or  not.  A  contrar}'  doctrine 
would  require  the  sheriff — a  mere  ministerial  officer — to  de- 
cide and  pass  upon  the  constitutionality  of  a  law  passed  by 
the  wisdom  of  the  legislature.  And  yet  if  he  is  to  be  made 
liable  in  damages  if  he  acts  under  an  unconstitutional  law 
he  must  necessarily  have  the  right  to  pass  upon  its  consti- 
tut  onalit}'  in  order  to  avoid  damages.  Even  the  highest 
tribunals  of  the  country  for  a  long  time  hesitated  to  decide  a 
law  unconstitutioiuil.  Dift'orent  judges  decided  this  question 
indifferent  ways,  the  weight  of  authority,  however,  being  in 
favor  of  the  right  of  the  court  to  pronounce  a  law  unconsti- 
tutional, and,  therefore,  not  binding.  But  no  court  ever  sup- 
posed for  a  moment  that  a  constable  or  sheriff  or  other  min- 
isterial officer  possessed  such  right." 

But  is  it  not  a  manifest  non  seqiiltur  that  an  inferior  court 
can  not  determine  this  question,  because  ministerial  officers 
can  not? 

However,  the  argument  goes  on  to  say:  "The  most  difficult 
questions  presented  to  our  courts  for  determination  are  fre- 

(A'jMarbury  v.  Mudi.son,  1  Cranch,  177. 


6  JUPilSDICTION    DEFINED. 

quently  constitutional  questions,  and  it  not  unfrequently  hap- 
pens that  the  ahlest  judges  differ  in  opinion  :  one  holding  that 
a  law  is,  and  the  other,  equally  learned,  holding  that  it  is  not, 
constitutional.  How  absurd  it  would  be  to  require  an  inferior 
court,  having  no  pretensions  to  equal  learning,  or  a  sheriff  or 
constable,  to  j^ass  on  grave  and  difficult  constitutional  ques- 
tions. "(Z)  But  may  we  not  suggest  that  learned  judges  often 
differ  as  much  in  construing  a  statute  mereh^ ;  that  it  is  not 
necessarily  any  more  difficult  to  interpret  a  constitutional 
provision  than  a  statutory  enactment;  that  inferior  courts 
must  of  necessity  interpret  and  construe  statutes,  and  deter- 
mine their  meaning,  and  that  if  they  can  judically  determine 
the  meaning  of  statutes,  they  may  also  determine  the  mean- 
ing of  a  constitutional  provision,  and  then  may  compare  them 
together,  and  declare  their  agreement  or  disagreement  ?  And 
if  this  be  of  the  very  essence  of  judicial  duty,  must  not  infe- 
rior courts  exercise  the  power,  when  necessary,  in  the  due  dis- 
charge of  that  judicial  duty?  I  tliinlc  so.  And  it  is  not 
strange  that  the  court  was  not  convinced  by  the  argument, 
but  decided  that  a  justice  of  the  peace  has  a  right,  when  neces- 
sary to  the  exercise  of  his  judicial  functions,  to  pass  upon  the 
constitutionality  of  a  statute  involved,  provided,  of  course, 
that  the  court  of  last  resort  has  not  passed  thereon.  In  pass- 
ing it  may  be  remarked,  as  a  matter  of  course,  that  a  some- 
what similar  duty  is  sometimes  imposed  on  courts  by  the 
necessity  of  deciding  between  two  conflicting  statutes,  or  two 
repugnant  provisions  of  the  same  statute.  The  rule  is,  to 
adopt  such  an  interpretation  as  to  give  effect  to  both,  if  this 
is  possible.  If  this  cannot  be  done,  then  the  court  is  to 
determine  the  legislative  will  from  all  the  circumstances  of 
the  enactments. 

(^)31aybeny  v.  Kelley,  1  Kau.  IIG. 


JURISDICTIONAL   DISTINCTIONS. 


CHAPTEE  II. 

JUEISDICTIONAL    DISTINCTIONS. 

$     7.  Jurisdiction  in  personam  and  in  rem. 

8.  Law  and  equit3\ 

9.  Civil  actions  and  criminal, military  and  ecclesiastical. 

10.  Superior  and  inferior  jurisdiction. 

11.  Concurrent  and  exclusive  jurisdiction. 

12.  Original  and  appellate  jurisdiction — direct  and  incidental  jurisdic- 

tion. 

§  7.  The  leading  distinction  herein  is  that  of  jurisdiction 
in  personam  and  in  rem.  Ordinarily  these  must  concur  in 
judicial  proceedings,  and  the  former  alone  is  never  maintain- 
able— not  even  in  regard  to  criminal  actions  or  the  writ  of 
habeas  corpus.*  The  latter  may  exist  alone,  but  not  so  as  to 
result  in  a  judgment  that  may  be  the  foundation  of  an  action 
subsequently  in  another  state,  («)  or,  I  suppose,  even  in  the 
same  state.  As  to  the  general  distinction,  the  supreme  court  of 
the  United  States  say:  "This  is  the  line  which  denotes  juris- 
diction and  its  exercise  :  in  cases  in  personam,  where  there  are 
adverse  jjarties,  the  court  must  have  power  over  the  subject- 
matter  and  the  parties,  but  on  a  proceeding  to  sell  the  real 
estate  of  an  indebted  intestate  there  are  no  adversary  parties — 
the  proceeding  is  in  rem,  the  administrator  represents  the 
land;  they  are  analogous  to  the  proceedings  in  the  admiralty, 
where  the  only  question  of  jurisdiction  is  the  power  of  the 
court  over  the  thing,  the  subject-matter  before  them,  without 
regard  to  the  persons  who  may  have  an  interest  in  it — all  the 
world  are  parties.  In  the  orphans'  court,  and  all  courts 
which  have  the  power  to  sell  the  estates  of  intestates,  their 
action  operates  on  the  estate,  not  on  tlie  heirs  of  the  intestate; 

*As  to  that  species  of  property  person  includes  jurisdiction  of  the 
■which  follows  the  person,  such  as  thing.  Keyser  v.  liice,  47  Md.  204. 
choses  in  action,  jurisdiction  of  the  (a)McVicker  v.  Beedy,  31  Me.  314. 


8  JURISDICTIONAL    DISTIXCTIONS. 

a  pureluiser  claims  not  their  title,  but  one  paramount;  the 
estate  passes  to  him  by  operation  of  law;  the  sale  is  a  pro- 
ceeding in  rem,  to  which  all  claiming  under  the  intestate  are 
parties,  which  divests  the  title  of  the  deceased  ;"(^)  and  it  is 
thus  also  ia  uon-residcnt  attachment  suits. 

§  8.  Another  distinction  is  that  of  legal  and  equitable  juris- 
diction— the  former  pertaining  to  rights  conferred  by  law, 
unwritten  or  enacted;  the  latter  to  equitable  rights  sup- 
plementing the  legal,  and,  in  theory  at  least,  correcting  the 
inequalities  of  the  latter,  and  supplying  their  deficiencies. 
These  branches  are  so  distinct  that  no  subsequent  action  at 
law  will  lie  on  a  decree  in  equity,  as,  for  example,  an  action 
to  recover  money  decreed  to  be  paid.(c) 

§  9.  A  civil  action  is  one  relating  to  rights  of  person  or 
property.  This  has  three  antWieses,  at  least  in  a  degree, 
namely:  (1)  Criminal  actions,  relating  to  public  offences;  (2) 
military,  usually  relating  merely  to  military  affairs,  although 
military  courts  may  take  cognizance  of  matters  usuall}'  cogni- 
zable in  civil  courts,  as  where  martial  law  is  declared,  and  thus 
civil  courts  superseded;  and  (3)  ecclesiastical, relating  to  the 
power  and  authority  of  ecclesiastical  courts  over  the  rights  of 
property  as  to  members  of  the  churches  to  which  those  courts 
pertain,  and  the  common  property  held  by  the  communities 
thereof.  All  these  will  be  distinctively  treated  hereafter  in 
the  present  work. 

§  10.  Another  distinction  is,  superior  or  inferior,  and  gen- 
eral or  limited  jurisdiction,  and  the  rules  concerning  these 
are  not  only  different  in  degree,  but  essentially  so,  as  we  shall 
see  in  the  course  of  our  investigation. 

§  11.  Again,  we  have  concurrent  and  exclusive  jurisdiction; 
the  former  existing  when  some  other  court  might  have  enter- 
tained the  cause.  Sometimes  this  is  the  case  with  courts  of 
law  and  of  equity,  as  in  the  matter  of  fraud.  And  sometimes 
this  is  exercised  concurrently,  in  order  that  the  court  of  equity 
may  assist  the  court  of  law,  as  in  a  matter  of  discovery, 
although  this  is  rapidly  becoming  superseded  hy  the  statutes 

(A)Grignou\s    Lessee   «.    Astor,   2  (cjHugh  v.  Higgs,  8  Wheat.  697. 

How.  (U.  6.)  338. 


JURISDICTIONAL    DISTINCTIONS. 


9 


allowing  parties  to  testify  in  courts  of  law.  Again,  there  is  a 
mixed  jurisdiction — the  same  court  having  legal  and  equitable 
powers. 

§  12.  Also,  there  are  original  jurisdiction  and  appellate  ju- 
risdiction— the  latter  consisting  of  the  power  to  review  the 
proceedings  of  courts  exercising  the  former:  and,  finall}^  there 
is  probate  jurisdiction,  relating  to  estates  of  decedents,  guard- 
ianship, etc. 

All  these  will  hereafter  pass  under  special  review,  and  arc, 
therefore,  merely  mentioned  now  for  the  sake  of  classification, 
needful  to  a  clear  and  connected  view  of  the  whole  subject. 
And  we  may  properly  add  here  that  there  is  a  direct  jurisdic- 
tion, and,  subsidiary  to  this,  an  incidental  jurisdiction — the 
latter  signifying  simply  that  wherever  a  general  power  exists  all 
authority  requisite  to  the  execution  thereof  exists  also  by  nec- 
essary implication,  as,  for  examjjle,  in  making  partition,  in- 
choate rights  may  be  perfected  in  favor  of  legal  representa- 
tives ;(fZ)  or,  in  determining  the  results  of  an  election,  the 
court  may  decide  all  the  facts  necessary  to  a  fair  and  legal 
election,  (c) 


(rf)Jenkin=!  v.  Simm?,  45  Md.  533. 

(e)Worshain  v.  Uichards,  4(j  Tex. 
441. 

And  so  a  court  should  decline  to 
entertain  jurisdiction  if  it  is  not  in 
a  condition  to  do  full  justice ;  as,  if 
its  decree  would  leave  a  party  still 
in  peril  of  being  subjected  to  an- 
other and  perhaps  adverse  decree 
or  judgment  in  a  different  jurisdic- 
tion. Harrison  v.  Pullman,  84  111. 
21.    In  Louisiana  it  is  held  that  if 


ditl'erent  causc«!  of  action  be  brought 
in  a  probate  court  in  a  single  action, 
some  of  which  are  within  its  juris- 
diction and  others  are  not,  the  court 
may  sever  them,  rejecting  the  out- 
side causes,  and  entertaining  the 
legitimate  causes  of  action.  Suc- 
cession of  Hoover  v.  York,  30  La. 
An.  752. 

The  matter  of  incidental  jurisdic- 
tion will  be  particularly  considered 
hereafter. 


10  LEGAL  EFFECT    OF    ACTING    WITHOUT   JURISDICTION. 


CHAPTEE  III. 

LEGAL    EFFECT    OF    ACTING    WITHOUT    JURISDICTION. 

f  13;  ]Sro  opinion  to  be  given  without  jurisdiction. 
14.  Wliat  may  be  done  without  jurisdiction. 
1;").  Legal  effect  of  acting  without  jurisdiction  explained. 
1(3.  Example. 

17.  Application  to  habeas  corpus  to  courts  martial  and  to  the  transcend- 

ing of  the  limits  of  jurisdiction. 

18.  Effect  of  subsequent  investiture  of  jurisdiction. 

19.  .'itare  decisis  in  regard  to  jurisdictional  questions. 

20.  Foreign  courts. 

Tliei-e  are  two  general  branches  of  this  inquiry — the  first 
relating  to  legally  constituted  courts,  and  the  other  to  illegal 
tribunals.  These  will  together  occupy  this  and  the  following 
chapter. 

§  13.  Where  there  is  no  jurisdiction,  it  does  not  belong  to 
the  proper  functions  of  a  court  to  give  an  opinion  upon  a 
matter  submitted  to  them,  for  the  guidance  of  parties  or  in- 
ferior tribunals,  even  where  the  parties  consent  to  it.  The 
whole  business  of  a  court  is  confined  to  giving  decisions  in 
cases  properly  before  it. (a) 

§  14.  However,  although  when  a  court  has  no  jurisdiction 
it  is,  in  general,  irregular  to  make  any  order  except  that  of 
dismissing  the  suit,  the  rule  does  not,  of  course,  prohibit 
the  court  from  setting  aside  orders  improperly  made  before 
the  want  of  jurisdiction  was  discovered,  and  restoring  the 
status  of  affairs  existent  prior  to  the  making  of  the  imj)roper 
orders. 

As,  for  example,  wliere,  under  writs  of  injunction  and  se- 
questration, a  marshal  took  possession  of  a  steamer  and  held 
it  subject  to  the  order  of  the  court,  and  it  afterwards  ap- 
peared that  the  writs  were  wrongly  issued,  on  which  the  court 

(a)Weedeu  «.  Town  Council,  etc.,  9  R.  1.  131. 


LEGAL    EFFECT    OP    ACTING    WITHOUT    JUHISDICTION.  11 

set  them  aside,  and  ordered  the  steamer  returned  to  the  one 
from  whose  custody  it  was  taken,  the  proceeding  was  ad- 
judged legitimate.  (^) 

§  15.  The  legal  effect  of  acting  without  jurisdiction  is  thus 
succinctly  stated,  in  a  leading  cise,  hy  the  supreme  court  of 
the  United  States:  "Where  a  court  has  jurisdiction,  it  has  a 
right  to  decide  every  question  which  occurs  in  the  cause;  and, 
whether  its  decision  be  correct  or  otherwise,  its  judgment^ 
until  reversed,  is  regarded  as  binding  in  every  other  court ; 
but  if  it  act  without  authority,  its  judgments  and  orders  are 
regarded  as  nullities.  They  are  not  voidable,  but  simply  void, 
and  form  no  bar  to  a  recovery  sought,  even  prior  to  a  reversal, 
in  oj^position  to  them,  '  They  constitute  no  justification,  ami 
all  persons  concerned  in  executing  such  judgments  or  sen- 
tences are  considered  in  law  as  trespassers.  This  distinction 
runs  through  all  the  cases  on  the  subject,  and  it  proves  that 
the  jurisdiction  of  any  court  exercising  authority  over  a  sub- 
ject may  be  inquired  into  in  every  other  court,  when  the  pro- 
ceedings of  the  former  are  relied  on  and  brought  before  the  lat- 
ter by  the  party  claiming  the  benefit  of  such  proceedings. '\c> 
The  principle,  then,  is  that  a  judgment  thus  pronounced  is 
not  merely  erroneous,  and  so  gaod  and  valid  until  reversed, 
but  null  and  void  ah  uiltio.^d)  Where  the  want  of  jurisdic- 
tion relates  to  the  subject-matter  a  court  cannot  render  a 
legal  judgment  in  it,  even  for  the  defendant  to  recover  his 
costs,  unless  this  be  expressly  authorized  by  statute. (e) 

§  16.  And  so  it  is  where  the  jurisliction  consists  of  the 
appointment  of  persons  to  discharge  certain  duties.  For 
example,  a  probate  court  cannot  appoint  an  administrator 
while  there  is  a  qualified  executor  capable  of  exercising  the 
authority  entrusted  to  him  by  the  testator,  either  with  or 
without  limitation.  And  if  such  appointment  be  made,  the 
letters  of  administration  are  absolutely  void,  and  if  a  judg- 
ment be  rendered  against  such  an  one  in  the  usual  forms,  the 
estate  of  the  testator  is  not  thereby  bound  in  any  degree. (_/") 

(/>)Elliott  ».  Picrsoll,  1  Pet.  340.  (*>)Co]lamer  «.  Paige,  35  Vt.  387. 

(c)EIliott  V.  Picrsoll,  1  Pet.  .340.  (/jGrittith  v.  Frazier,  8  Cranch,  8. 

(djFi.sher  v.  llarnden,  1  Paine  C.  C.  58. 


12  LEGAL    EFFECT    OF    ACTIXG    Willi 3 UT    JURISDICTION. 

§  17.  The  principle  lias  bean  carried  so  Lir  as  to  include  a 
discharge  by  habeas  corpus;  as,  for  instance,  where  a  pnsoiier 
was  released  on  habeas  corpus  from  the  custody  of  the  sheriff 
who  had  made  the  arrest,  on  a  ca.  sa.,  by  a  supreme  court 
commissioner,  and  the  sheriff  was  prosecuted  for  an  escape, 
and  offered  the  discharge  in  evidence  as  a  justification,  the 
court  held  that  the  proceedings  on  the  habeas  corpus  were 
coram  nou  judlce,  and  no  defence  to  the  officer,  because  the 
power  to  discharge  under  the  habeas  corpus  act  did  not  relate 
to  a  prisoner  in  execution  by  legal  process. (r/) 

The  principle  extends,  too,  to  courts  martial,  (/i)  Nor  is 
it  different  in  a  case  where  the  jurisdiction  is  merely  tran- 
scended. It  is  as  if  there  were  no  jurisdiction,  as,  for  instance, 
if  the  jurisdiction  is  enforced  beyond  the  defined  territorial 
limit  within  which  it  is  to  be  exercised,  (i) 

§  18.  Where  suit  is  instituted  in  a  court  without  jurisdic- 
tion, and  the  court  is  afterwards  invested  with  jurisdiction  in 
such  cases,  this  subsequent  investiture  does  not  cure  the  prior 
defect,  since  without  jurisdiction  all  acts  are  not  voidable, 
but  void  absolutely.  (J) 

§  19.  Nevertheless,  sometimes  the  doctrine  of  stare  de- 
cisis may,  by  way  of  estoppel,  protect  acts  and  proceedings 
had  without  jurisdiction,  as  where  appeal  is  taken  from  the 
judgment  of  a  court,  and  the  appellate  court  reverses  the 
judgment  and  remands  the  case  for  trial  again,  and  the  case 
comes  up  on  appeal  the  second  time,  it  has  been  held  too  late 
to  object  to  the  want  of  jurisdiction  in  the  court  below. (A:) 
And  this  goes  on  the  principle  that  "a  su^jerior  court  cannot 
review  or  reverse  its  own  decisions,  solemnly  made,  unless  in 
some  regularly  prescribed  method  for  rehearing.  "(I) 

The  supreme  court  of  the  United  States  have  gone  so  far 
as  to  hold  on  this  point  that  where  the  merits  of  a  case  have 
been  passed  upon  by  the  supreme  court,  and  the  cause  has 

{g)Ciih\e  V.  Cooper,  15  Johns.  152.  (^jSomple  v.  Anderson,  9  Gil.  (111.) 

(A)Barrett  «.  Crane,  16  Vt.  250.  653. 

(2)Kenney  «.  Greer,  13  111.  441.  (^)Hallowbusli   v.   McConnell,   12 

{j)Mora  V.  Kuzac,  12  La.  Ann.  754.  111.  2U3. 


LEGAL    EFFECT    OF    ACTING    WITHOUT    JUBISDICTION.  13 

been  remanded,  it  is  too  late  to  raise  the  question  of  jurisdic- 
tion even  in  the  lower  court ;(/;;)  and  the  ground  of  this  is  thus 
stated:  "Whatever  was  before  the  [supreme]  court,  and  was 
disposed  of,  is  considered  as  finally  settled.  The  inferior 
court  is  bound  by  the  decree  as  the  law  of  the  case,  and  must 
carry  it  into  execution  according  to  the  mandate.  They  can- 
not vary  it,  or  examine  it,  for  any  oilier  purpose  than  execu- 
tion, or  give  any  other  or  farther  relief,  or  review^  it  upon  any 
matter  decided  on  appeal  for  error  appaient,  or  intermeddle 
with  it,  further  tiian  to  settle  so  mucii  as  has  been  remanded. 
And  on  a  subsequent  appeal  nothing  is  brought  up  but  the 
proceeding  subsequent  to  the  mandate. "(//) 

§  20.  The  courts  of  a  foreign  nation  must  judge  of  their 
own  jurisdiction  so  far  as  this  depends  on  municipal  rules, 
and  the  courts  of  other  countries  must  respect  the  decision; 
but  if  they  exercise  a  jurisdiction  which  the  sovereign  could 
not  confer  according  to  the  law  of  nations,  their  judgments 
are  not  regarded  by  others,  however  available  within  the 
dominions  of  the  sovereign. (o) 

(?ft)Skillem's    Exec'rs    v.    May's  (7i)Sibbald  «.  U.  S.  12  Pet.  492. 

Exec'is,  6  Crauch.  267.  (<?)liose  v.  Himely,  4  Crancli,  276. 


14:  ILLEGAL    COUIIIS. 


CHAPTEE  IV. 

ILLEGAL   COURTS.* 

§  21.   Gencrnl  rule  a«  to  nnautliorizod  courts. 

22.  Confederate  courts. 

23.  Doctrine  relating  thereto  in  Louisiana. 
2-i.  An  Alabama  ca.se  at  len<itli. 

25.  Provisional  courts  alteiwards  declared  illeiral — o'cneral  principle  as 
to  the  cun federate  courts. 

The  principles  set  forth  in  the  preceding  chapter,  it  will  be 
remembered,  relate  to  legal  tribunals,  and  while  they  are  to 
some  extent  applicable  to  usurping  courts,  yet  we  shall  find 
some  modification  therein,  as  applied  to  the  latter,  not,  in- 
deed, exclusively  on  the  distinction  of  de  facto  and(/(;  j'^nr,  but 
on  the  ground  of  a  qiins'i  subsequent  ratific:ition  in  conse- 
Cjuence  of  tlie  necessit^y  arising  from  the  state  of  public  af- 
fairs. 

§  21.  The  general  rtile  is,  of  course,  as  stated  by  the 
supreme  court  of  the  United  States,  that  "a  sentence  profess- 
ing on  its  fa3e  to  be  the  sentence  of  a  judicial  tribunal,  if 
rendered  by  a  self-constituted  body,  or  by  a  body  not  empow- 
ered by  its  government  to  take  cognizance  of  the  subject  it 
had  decided,  can  have  no  legal  effect  whatever. "(r() 

§  22.  Iti  this  connection,  the  most  important  points  of  in- 
quiry relate  to  the  courts  of  the  southern  confederacy.      And 

*See  my  work  on  "  Res  Adjudi-  (r^jliose  «.  Himely,  4  Cranch,  26S. 
cata  and  Stare  Decisis,"  where  Hence,  an  incompetent  court 
the  view  is  taken  tliat  tlie  lebel  cannot  establish  res  a(^j>idicai-i. 
courts  were,  on  the  ordinary  prin-  Scully  v.  Lowonstein,  5(!  Miss.  O'rl. 
ciples  governing  a  state  of  war,  and  And  if  a  judge  refuses  to  grant  a 
on  the  principle  of  de /«c^w  officers,  motion  for  a  want  of  jurisdiction 
possessed  of  lawful  jurisdiction  this  refusal  does  not  bar  the  enter- 
after  tlie  rcliellion  had  risen  to  the  taining  of  the  motion  by  a  judge 
amplitude  and  dignity  of  civil  who  lias  jurisdiction.  Bank  «. 
war.  Wilson,  fcO  X.  C.  200. 


ILLEGAL    COURTS.  15 

I  shall  set  out  pretty  fully  the  litigation  thereon,  so  far  as  it 
has  heen  develoioed  in  the  United  States  courts  and  state 
courts. 

During  the  war  a  court  was  estahlished  hy  the  rebel  gov- 
ernment, and  called  the  "District  Court  of  the  Confederate 
States  of  America  for  the  northern  district  of  Alabama."  In 
this,  one  was  tried  for  treason  against  the  confederate  states 
in  aiding  the  United  States  troops,  and  was  acquitted.  Sub- 
sequently he  brought  suit  for  malicious  prosecution  against 
the  judge,  clerk,  marshal  and  members  of  the  grand  jury. 
Being  defeated,  he  sued  out  a  writ  of  error,  and  brought  the 
cause  before  the  United  States  supreme  court,  which  re- 
marked : 

"The  rebellion,  out  of  which  the  war  grew,  was  witliout  any 
legal  sanction.  In  the  eye  of  the  law  it  had  the  same  prop- 
erties as  if  it  had  been  the  insurrection  of  a  county,  or  smaller 
municipal  territory,  against  the  state  to  which  it  belonged. 
The  proportions  and  duration  of  the  struggle  did  not  affect 
its  character,  nor  was  there  a  rebel  government  de  facto,  in 
such  a  sense  as  to  give  any  legal  efficacy  to  its  acts.  It  was 
not  recognized  by  the  national,  nor  by  any  foreign,  govern- 
ment. It  was  not  at  any  time  in  possession  of  the  capital  of 
the  nation.  It  did  not  for  a  moment  displace  the  rightful 
government;  that  government  was  always  in  existence,  al- 
ways in  the  regular  discharge  of  its  functions,  and  constantly 
exercising  all  its  military  power  to  put  down  the  resistance 
to  its  authority  in  the  insurrectionary  states.  Tiie  union  of 
the  states  for  all  the  purposes  of  the  constitution  is  as  perfect 
(1869)  and  indissoluble  as  the  union  of  the  integral  parts  of 
the  states  themselves,  and  nothing  but  revolutionary  violence 
can  in  either  case  destroy  the  ties  which  hold  the  parts  to- 
gether. For  the  sake  of  humanity,  certain  belligerent  rights 
were  conceded  to  the  insurgents  in  arms.  But  the  recogni- 
tion did  not  extend  to  the  pretended  government  of  the  con- 
federacy; the  intercourse  was  confined  to  its  military  author- 
ities. In  no  instance  was  the  intercourse  otherwise  than  of 
this  character.  The  rebellion  was  simply  an  armed  resist- 
ance to  the  rightful  authority  of  the  sovereign.      Such  was  its 


10  ILLEGAL    COURTS. 

cliaracter,  in  its  rise,  progress  and  downfall.  The  act  of  the 
confederate  congress  creating  the  tribunal  in  question  was 
void ;  it  was  as  if  it  were  not.  The  court  was  a  nullity,  and 
could  exercise  no  rightful  jurisdiction;  theforms  of  law  with 
which  it  clothed  its  proceedings  gave  no  protection  to  those 
who,  assuming  to  be  its  officers,  were  the  instruments  by 
which  it  acted. "(5) 

§  23.  But  in  Louisiana  it  has  been  held  that  confederate 
legal  proceedings  may  be  so  far  legalized  subsequently  as  to 
confirm  titles  acquired  thereunder.  And  so,  where  suit  was 
brought  on  promissory  notes,  and  the  defence  was  "that  the 
land  purchased,  and  for  which  the  notes  were  executed,  was 
sold  at  a  probate  sale  under  and  by  virtue  of  orders  from  a 
pretended  court,  which,  with  all  its  officers,  held  their  as- 
sumed powers  from  the  insurgent  authorities  then  in  rebell- 
ion against  the  government  of  the  United  States,  and  that 
the  proceedings  had  under  the  illegal  authority  in  relation  to 
the  sale  of  the  property,  the  appointment  of  an  administrator, 
etc.,  are  null  and  void,  and  that  the  defendants  being  without 
title  are  not  bound  for  obligations  having  no  legal  effect,"  the 
court  held  that  the  proceedings  had  been  legalized  by  the 
constitution  of  1S68,  which  provided  that  "all  judgments  and 
judicial  sales,  marriages,  and  executed  contracts  made  in  good 
faith,  and  in  accordance  with  existing  laws  in  this  state,  ren- 
dered, made,  or  entered  into,  between  the  twenty-sixth  day  of 
January,  A.  D.  1861,  and  the  date  when  this  constitution 
shall  be  adopted,  are  hereby  declared  to  be  valid,  "(c) 

§  24.  In  Alabama,  a  controversy  arose  as  to  confederate 
money  as  legal  tender — a  rather  common  question  after  the 
close  of  the  war  in  that  and  other  southern  states.  The  case  is 
a  very  elaborate  and  important  one,  and  coming  from  one  of 
the  states  involved  in  the  rebellion  I  feel  myself  justified  in 
quoting  somewhat  fully  from  it.  It  was  a  case  between  a  ward 
and  his  guardian,  acting  previously  under  the  direction  of  a 
confederate  probate  court.     The  supreme  court  held  : 

"There  is  but  one  state  of  Alabama  known  to  this  tribunal 

(i)IIickman  v.  Jones,  9  Wall.  200.  (cjHnghes'  Adm'r  v.  Stiuson,  21 

La.  Ann.  540. 


ILLEGAL    COURTS.  17 

by  its  laws;  that  is  the  state  of  Alabama,  a  member  of  the 
Union,  acting  under  the  constitution  of  the  United  States  and 
in  conformity  to  its  requisitions.  Any  other  state  of  Alabama 
is  an  usurpation,  unconstitutional,  illegal  and  void,  and  the 
acts  of  its  general  assembly  partake  of  its  own  defects.  They 
have  no  legal  standing  in  this  court,  unless  it  is  shown  that 
they  have  been  re-enacted,  or  adopted  by  the  rightful  gov- 
ernment of  the  state.  That  the  rebel  government  was  an 
organized  political  body  within  the  limits  of  this  state  is  not 
enough  to  give  its  enactments  the  force  of  laws.  It  must  be 
a  state  admitted  into  the  Union,  and  must  derive  its  powers 
from  the  constitution  and  laws  of  the  United  States.  Scott  v. 
Jones,  5  How.  343;   Clierokee  Nation  v.  Georgia,  5.  Pet.  18. 

"The  rightful  state  of  Alabama — the  only  one  known  to 
this  court  as  a  state — has  never  been  out  of  the  Union,  nor 
has  it  ever  been  destroyed,  though  its  government  has  been 
suspended.  The  ordinance  of  secession  was  a  nullity.  It 
neither  overthrew  the  state  nor  repealed  its  laws.  Its  effects 
were  therefore  nothing.  This  is  expressly  affirmed  by  the 
supreme  court  of  the  United  States  in  the  case  of  Mauran  v. 
Insurance  Company,  in  which,  speaking  of  the  rebelling  states, 
that  court  says :  'We  agree  that  all  the  proceedings  of  these 
eleven  states,  either  severally  or  in  conjunction,  by  means  of 
which  the  existing  governments  were  overthrown,  and  new 
governments  erected  in  their  stead,  were  wholly  illegal  and 
void,  and  that  they  remained  after  the  attempted  separation 
and  change  of  government,  in  judgment  of  law,  as  completely 
under  all  their  constitutional  obligations  as  before.  The  con- 
stitution of  the  United  States,  which  is  the  fundamental  law 
of  each  and  all  of  them,  not  only  afforded  no  countenance  or 
authority  for  these  proceedings,  but  they  were,  in  every  part 
of  them,  in  express  disregard  and  violation  of  it.    6  Wall.  13, 14. 

"Then  the  rebel  state  government  of  Alabama  was  uncon- 
stitutional and  wholly  void — for  what  is  unconstitutional  is 
illegal  and  void,  so  far  as  law  is  concerned — and  inasmuch 
as  the  rightful  state  of  Alabama  was  never  destroyed,  or  out 
of  the  Union,  no  new  state  could  be  formed  or  erected  within 
v.l— 2 


IS  ILLEGAL    COURTS. 

its  houiularies  without  the  consent  of  congress,  which  was 
neither  asked  nor  obtained.  Const.  U.  S.  article  4,  §  3,  cl. 
1;  Pasch.  Ann.  Const.  234,  235.  The  general  assembly  of 
this  illegal  government  and  its  laws  could  be  no  better  than 
itself.  All  were  void,  ex  nih'do  nihil  fit.  To  give  such  laws 
any  validity  would  be  to  justify,  so  far  as  such  laws  went, 
the  abortive  attempt  to  overthrow  the  Union  itself.  These 
rebel  governments  have  been  declared  illegal,  and  conse- 
quently void,  by  all  the  departments  of  the  government  of 
the  United  States,  which  is  the  supreme  government  in  this 
nation.  The  legislative,  the  executive,  and  the  judicial  all 
concur  in  denouncing  them  as  illegal.  Act  of  Congress, 
March  2,  1867;  President  Johnson's  Proclamation,  .June  21, 
1865;  Maiiran  v.  Insurance  Co.  6  Wall.  1,  13,  14;  Texas  v. 
White,  January  term  Sup.  Ct.  U.  S.  1869. 

"The  law,  then,  which  is  presumed  to  be  appealed  to  by  the 
defendant  is  not  a  law  of  this  state  as  at  present  organized? 
and  it  never  was  a  law  of  the  rightful  state  of  Alabama,  nor 
is  it  a  law  of  such  a  character  as  state  or  national  comity 
requires  should  be  treated  with  any  respect ;  it  afforded  the 
guardian  no  authority  to  deal  with  his  ward's  estate  as  he  has 
done,  because  it  carried  with  it  no  authority  to  bestow  for 
that  purpose.  *****  To  give  this  enactment  the 
validitj'of  law  would  be  to  declare  that  the  rebel  organization 
holding  control  of  the  state  of  Alabama  was  the  legal  govern- 
ment of  the  state  during  the  whole  course  of  the  late  war, 
and  that  such  government,  for  the  time  being,  was  a  govern- 
ment in  the  state  of  Alabama  above  the  constitution  and 
laws  of  the  United  States,  and  that  its  enactments  were  legal — 
that  is,  they  clothed  those  who  acted  under  them  with  author- 
ity as  valid  laws,  whatever  might  be  their  character. 

"There  were,  doubtless,  many  things  done,  and  some  laws 
passed  in  this  state,  during  the  rebellion,  which  ought  to  l)e 
ratified  and  adopted,  but  this  enactment  is  not  one  of  them. 
To  adopt  it  would  be  to  sanction  the  late  rebellion  and  dis- 
regard the  constitution  of  the  United  States.  It  is  known  to 
the  court  as  a  matter  of  history  that  '  the  confederate  states  ' 
and  'the  said  state,'  mentioned  in  the  caption  of  said  enact- 


ILLEGAL    COURTS.  19 

mont,  were  rebel  organizations  at  war  with  the  Unitel  States, 
seeking  to  destroy  that  government;  and  that  'the  bonds  and 
notes  of  the  confederate  states,  or  the  state  of  Alabama,'  were 
issued  by  such  rebel  organizations  in  aid  of  such  rebel  war, 
and  as  such  they  are  illegal  and  void ;  if  the  rebellion  failed,  as 
every  patriotic  citizen  had  good  reason  to  believe  and  to  desire, 
then  they  were  inevitably  bound  to  be  utterly  worthless.  They 
were  not  such  a  currency  as  any  state  government,  either  de 
facto  or  lie  jure,  within  the  limits  of  the  Union,  could  make  a 
legal  tender  for  the  payment  of  debts,  unless,  perhaps,  the 
agreement  was  to  i^ay  in  such  currency,  and  even  then  it  may 
be  doubted  whether  the  courts  of  the  state,  as  at  present  or- 
ganized, would  enforce  such  contracts  as  being  tainted  with 
crime  and  in  contravention  of  public  policy.    28  Ala.  K.  514. 

"It  seems  that  this  might  suffice  to  settle  the  merits  of 
this  case,  but,  as  it  was  passed  in  oral  argument  at  the  bar 
by  the  eminent  counsel  for  the  appellant,  and  is  now  again 
urged  in  his  brief  that  this  case  turns  wholly  on  a  single 
proposition,  it  is  fit  that  the  court  should  so  far  consider  this 
proposition  as  to  settle  it  for  the  future.  The  proposition 
is:  -During  the  war  the  constitution  and  laws  of  the 
United  States  were  wholly  suspended  in  Alabama,  and  were 
revived  as  the  forces  of  the  United  States  acrjuired  the  con- 
trol of  the  territory.  The  constitution  and  laws  of  the 
United  States  regained  their  power  and  control  as  the  army 
did — they  marched jja?'iprt.s'5?f  with  the  army.' 

"This  seems  to  me  undistinguishable  from  the  doctrine 
laid  down  in  the  case  of  Watson  and  Wife  v.  Stone,  40  Ala. 
450,  which  has  been  repudiated  and  overruled  by  this  court, 
Coleman  v.  Ckisholm,  January  T.  1860.  If  it  does  not  mean 
this,  it  is  not  perceived  what  the  presence  of  the  army  had  to 
do  with  the  matters  involved  in  this  case  in  any  way.  The 
defendants  below  do  not  insist  that  they  are  excused  by  any 
military  order,  or  that  the  guardian  was  forced  by  the  insur- 
rectionary army  to  make  an  illegal  investment  of  his  ward's 
estate.  Unless,  then,  there  was  a  government  connected  with 
this  army  whose  laws  the  army  supported  and  gave  validity 
by  reason  of  its  support,  it  does  not  appear  to  me  that  its 


20  ILLEGAL    COURTS. 

presence  or  absence  was  of  any  consequence  in  this  suit.  If, 
however,  it  is  intended  that  this  mihtary  occupation,  which 
suspended  the  constitution  and  laws  of  the  United  States 
during  its  continuance,  gave  validity  and  legality,  whatever 
government  may  have  been  connected  with  it,  so  as  to  give 
force  and  effect  to  its  laws  in  this  court,  without  re-enactment 
or  adoption  by  the  legislative  department  of  the  government 
as  now  organized,  then  we  cannot  accept  the  proposition  as 
true,  nor  sanction  the  consequences  attempted  to  be  adduced 
from  it.  This  court  can  only  acknowledge  such  states  and 
such  governments  as  have  been  previously  acknowledged  by 
the  proper  political  department  having  the  power  to  make 
such  acknowledgment.  Scott  v.  Jones,  5  How.  343;  Luther 
V.  Borden,  7  How.  1.  No  such  government  has  ever  been 
acknowledged,  therefore  this  court  does  not  know  that  it  ever 
existed  as  a  law-making  authority.  If  it  did  exist  as  such  it 
was  forbidden  by  the  constitution,  and  was  wholly  illegal  and 
void.  It  had  no  legal  authority  and  could  communicate  none 
to  its  enactments.  The  evil  tree  cannot  bring  forth  good 
fruit.  The  offspring  must  follow  the  fate  of  tlie  mother. "((/) 
§  25.  In  another  very  elaborate  case,  decided  at  the  same 
term,  it  was  held  that  the  provisional  court  or  courts  under 
the  provisional  government  established  by  the  president,  in 
Alabama,  in  1865,  had  jurisdiction,  even  although  congress 
afterwards  declared  the  presidential  act  to  be  illegal.  And 
Judge  Saffold,  in  a  concurring  separate  opinion  on  this  mat- 
ter, and  as  to  the  authority  of  rebel  courts,  thus  laid  down 
the  grounds  for  not  allowing  the  adjudications  to  be  disturbed, 
and  holding  them  so  far  valid  as  to  be  capable  of  hema:  after- 
wards ratified  or  legalized.  "It  is  insisted  that  the  rel..  .ourts 
had  no  jurisdiction  of  the  causes  they  determined,  and  that 
it  is  beyond  the  power  of  state  legislation  to  validate  their 
judgments  ;  that  the  action  of  a  court  without  jurisdiction  is 
void,  and  the  statute  alone  would  constitute  the  adjudication 
upon  the  rights  of  the  parties.  This  is  an  objection  which  ought 
to  be  conclusive  against  such  legislation,  except  under  those 
extraordinary  circumstances  which  occur  but  seldom  in  the 
(d) Hallo.  Hall,  43  Ala.  497. 


ILLEGAL    COUItTS.  21 

history  of  a  people,  and  which  may  be  admitted  as  exceptional 
cases.  The  federal  constitution  does  not  forbid  a  state  legis- 
lature to  exercise  judicial  functions.  The  ordinances  of  a 
state  convention  are  of  as  high  authority  as  the  state  consti- 
tution.* During  the  war  the  courts  remained  as  they  were 
constituted  under  the  legal  government.  Most  of  the  judges 
were  legally  elected;  the  jurors  were  such  as  were  qualified 
to  serve  by  the  valid  law.  The  people  retained  their  right  to 
the  administration  of  justice  without  denial  or  delay;  they  re- 
sorted to  these  courts  for  a  decision  of  the  issues  between  them. 
When  the  war  was  over,  what  hindered  them,  in  their  sovereign 
capacity,  from  enacting  a  bill  of  peace  to  quiet  the  litigation 
of  years'?  What  was  more  just  than  to  stamp  the  adjudica- 
tions of  the  rebel  courts  with  the  character  of  provisional 
judgments — to  be  annulled  and  a  new  trial  granted  for  good 
cause  shown "?  The  principle  of  the  validity  of  de  facto  govern- 
ments is  undoubtedly  applicable  to  the  provisional  govern- 
ments since  the  war,  and  perhaps,  on  all  ordinary  subjects,  to 
that  existing  during  its  continuance.  It  depends  solely  on 
the  simple  and  sutticient  reason  that,  when  an  illegal  govern- 
ment has  existed  for  a  considerable  time,  it  is  better  to  ac- 
quiesce in  what  has  been  done  than  to  still  further  convulse 
and  demoralize  society  by  vainly  seeking  to  run  a  thread  of 
legality  through  the  mode  of  its  doings. "(e) 

The  principle  is  now  well  settled  by  the  United  States 
supreme  court  that  the  judgments  rendered  by  confederate 
courts  during  the  civil  war  were  and  are  valid  and  binding,  so 
far  as  they  did  not  tend  in  themselves  to  the  subversion  of 
the  national- government  or  the  rights  of  citizens  under  it.(/) 
In  Virginia  the  confederate  government  has  been  declared  to 
have  been  de  facto,  so  that  contracts  made  under  it  are  valid.((/) 

But  Ohio  holds  that  their  acts  could  not  affect  non-resi- 
dents, citizens  of  loyal  states.(/i)  And  this  would  seem  to 
be  a  just,  if  not  a  necessary  limitation. 

*Tlmt  1  do  not  understand.  See,  to  the  same  ell'ect,  BaiU'v  v. 

{(')Fi)\ve\]  V.  Boon,  43  Ala.  487.  Fitzjrcrald,  56  Miss.  57!». 

(/)IIorn   V.  Lockhart,    17   Wall.  (.(7)Pulaski     Co.    «.     Stewart,     28 

57<t.     (Swayne,  Davis,  and  Strong,  Gratt.  872. 

JJ.,  dissenting.)  (/i)Penni\vit«.Footc,27OhioSt.600. 


22  BUPERIOR    AND    INFERIOB    JUEISDICTION. 


CHAPTER  V. 

SUPERIOR   OR   GENERAL    AND   INFERIOR   OR    LIMITED   JURISDICTION. 

§  26.  Distinction  not  readily  defined. 

27.  Bouvier's  definition. 

28.  General  jurisdiction  limited  to  particular  subjects. 

29.  Statutory  innovations. 

§  26.  It  is  not  an  easy  matter  to  give  an  accurate  defini- 
tion of  this  topic,  since  all  courts  are,  in  one  way  or  another, 
restricted  within  definite  limits  as  regards  extent,  territory, 
and  the  like;  and  all  courts  are  in  a  sense  inferior  which 
have  a  court  above  them  entitled  to  review  their  proceedings; 
and  yet  such  courts  are  oft3n  considered  as  general  in  their 
jurisdiction.  Bouvier,  in  his  Institutes,  (vol.  3,  p.  70,)  saj's : 
"All  other  tribunals  than  the  supreme  court  are  inferior 
courts.  These  courts  have,  in  general,  original  jurisdiction  in 
cases  both  at  law  and  in  equity.  Unlike  a  supreme  or  superior 
court,  an  inferior  tribunal  is  a  court  of  limited  jurisdiction, 
and  it  must  appear  upon  the  face  of  its  proceedings  that  it 
has  jurisdiction,  or  its  proceedings  will  be  void."  This  is 
directly  inconsistent  with  what  the  supreme  court  of  the 
United  States  has  said  on  this  point :  "All  courts  from  which 
an  appeal  lies  are  inferior  courts,  in  relation  to  the  apjDellate 
court,  before  which  their  judgments  are  carried,  but  they  are 
not  therefore  inferior  courts  in  the  technical  sense  of  those 
words;  th  y  apply  to  courts  of  a  special  and  limited  juris- 
diction, which  are  erected  on  such  principles  that  their  judg- 
ments taken  alone  are  entirely  disregarded,  and  the  pro- 
ceedings must  show  their  jurisdiction.  The  courts  of  the 
United  States  are  all  of  limited  jurisdiction,  and  their  pro- 
ceedings are  erroneous  if  the  jurisdiction  be  not  shown  on 
them.  Judgments  rendered  in  such  cases  may  certainly  be 
reversed;  but  this  court  is  not  prepared  to  say  that  they  are 


SUPERIOR    AND    INFERIOR    JURISDICTION.  2S 

ahsolute  nullities,  which  may  be  totally  disregarded. "(«)*  In 
New  York  the  courts  of  common  pleas  have  been  declared 
courts  of  general  jurisdiction. (Z>)  And  so  in  other  states; 
hence  the  statement  of  Bouvier  is  at  least  unauthorized. 

§  27.  However,  his  definition  of  what  constitutes  a  superior 
court  may  be  accepted,  namely :  such  as  have  their  jurisdic- 
tion by  the  common  law,  and  b}-  the  constitution  of  the  United 
States,  or  of  the  state  where  located.  (Page  69.)  And,  in  gen- 
eral, an  inferior  court  may  be  said  to  be  one  proceeding,  by 
force  of  particular  statutes,  out  of  the  course  of  the  common 
law.  Or,  again,  courts  of  record  may  be  regarded  so  far  as  of 
general  jurisdiction,  and  those  not  of  record  as  inferior. (c) 
In  New  York  the  definition  is  laid  down  that  a  court  of  gen- 
eral jurisdiction  has  power  to  hear,  try  and  determine,  accord- 
ing to  law,  all  actions  local  to  the  county  where  it  sits,  and 
all  transitory  actions  wherever  the  cause  may  arise. (cZ)  And 
again,  if  a  court  has  "general  jurisdiction  of  an  enumerated 
class  of  actions,  without  reference  to  the  place  where  they 
arise,  or  the  parties  to  them  reside,  or  to  the  amount  sought 
to  be  recovered,  being  a  court  of  record  and  proceeding  ac- 
cording to  the  general  course  of  the  common  law,  it  is  regarded 
quoad  hoc  a  superior  court  within  the  meaning  of  the  rule; 
while  a  court  is  one  of  limited  jurisdiction  where  its  jurisdic- 
tion of  every  action — of  the  action  itself — is  made  to  depend 
on  the  place  where  the  defendants  reside,  or  the  fact  that 
they  are  personally  served  with  a  summons  within  a  desig- 
nated locality  smaller  than  a  county.  "(>)  Again,  it  is  said  that 
"courts  of  record  which  have  an  original,  general  jurisdiction 
over  any  particular  subjects  are  not  courts  of  special  or  lim- 
ited jurisdiction,  or  inferior  courts,  in  the  technical  sense  of 
the  term,  because  an  appeal  lies  from  their  decisions. "(/) 

§  28.  It  will  be  observed  that  there  may  be  a  general  jur- 
isdiction, limited  to  particular  subjects,  applying,  however, 

(/^)Kempe's  Lessees.  Keniiody,  5  (c)Beaubiea     «.     Briukerholf,    2 

Craneli,  185.  Scam.  272. 

*lt  does  apiiear  to  me  that  there  (rf)Foot  «.  Stevens,  17  Wend.  484. 

is  a  striking  indefinitene.ssandcon-  (^')Simmons«.DeBare,4Bosw.555. 

fusion  in  this  pa.ssage.  (/)Devaughn    «.    Devaughu,    19 

(ijFoot  t).  Stevens,  17  Wend.  4b4.  Gratt.  5G5. 


24  SUPERIOB   AND    INFERIOR    JURISDICTION. 

of  course  to  the  whole  class  to  which  the  particular  subjects 
belong.  And  this  is  also  recognized  in  a  case  cited  above 
from  the  suj^reme  court  of  the  United  States,  in  regard  to  a 
court  endowed  with  special  power  to  ascertain  who  had  sided 
with  Great  Britain  in  the  revolutionary  war,  under  certain 
legislative  acts  of  New  Jersey,  confiscating  the  property  of 
such  persons.  It  was  contended,  in  an  action  of  ejectment 
brought  by  one  who  had  been  thus  divested  of  property,  that 
the  court  having  the  power  of  such  inquiry  must  be  regarded 
as  an  inferior  court  of  special  and  limited  jurisdiction.  The 
court  was  the  county  court  of  common  j)leas,  but  it  was  held 
that  the  New  Jersey  statutes  "could  not  be  fairly  construed 
to  convert  the  court  of  common  pleas  into  a  court  of  lim- 
ited jurisdiction  in  cases  of  treason,"  because  "it  remains 
the  only  court  capable  of  trying  the  ofifenses  described  by  the 
laws  which  have  been  mentioned,  and  it  has  jurisdiction  over 
all  ofifenses  committed  under  them.  *  *  *  *  It  is  un- 
derstood to  be  a  court  of  record,  possessing,  in  civil  cases,  a 
general  jurisdiction  to  any  amount,  with  the  exception  of 
suits  for  real  property.  In  treason,  its  jurisdiction  is  over  all 
who  may  commit  the  ofifense.  Every  case  of  treason  which 
could  arise  under  the  former  statutes  is  to  be  fiuall}'  decided 
in  this  court.  With  respect  to  treason,  then,  it  is  a  court  of 
general  jurisdiction,  so  far  as  respects  the  property  of  the 
accused.  "(^) 

§  29.  In  order  to  be  a  superior  court  it  is  not  needful  that 
in  all  particulars  a  court  conforms  to  the  common  law  course 
of  proceeding.  It  may  vary  in  obedience  to  a  statute,  and 
even  thus  go  contrariwise  to  the  common  law.  On  this 
point  the  supreme  court  of  the  United  States  remark:  "The 
jurisdiction  which  is  now  exercised  by  the  common  law  courts 
in  this  country  is,  in  a  very  large  proportion,  dependent  upon 
special  statutes  conferring  it.  Many  of  these  statutes  create 
for  tlie  first  time  the  rights  which  the  court  is  called  upon  to 
enforce,  and  many  of  them  prescribe  with  minuteness  the 
moJe  in  wliich  these  rights  are  to  be  pursued.  Many  of  the 
powers  thus  granted  to  the  court  are  not  only  at  variance  with 
(^)Ivempc's  Lessee  v.  Kennedy,  5  Ciiinch,  185,  ISG. 


SUPERIOR    AND    INFERIOR    JURISDICTION.  25 

the  common  law,  but  often  in  derogation  of  that  law.  In  all 
cases  where  the  new  powers  thus  conferred  are  to  be  brought 
into  action  in  the  usual  form  of  common  law  or  chancery  pro- 
ceedings, we  apprehend  there  can  be  little  doubt  that  the  same 
presumptions  as  to  the  jurisdiction  of  the  court,  and  the  con- 
clusiveness of  its  action,  will  be  made  as  in  cases  falling  more 
strictly  within  the  usual  powers  of  the  court.  On  the  other 
hand,  powers  may  be  conferred  on  the  court,  and  duties  re- 
quired of  it,  to  be  exercised  in  a  special  and  often  summary 
manner,  in  which  the  order  or  judgment  of  the  court  can  only 
te  supported  by  a  record  which  shows  that  it  had  jurisdiction 
of  the  case.  The  line  between"  these  two  classes  of  cases  may 
not  be  very  well  defined,  nor  easily  ascertained  at  all  times. 
There  is,  however,  one  principle  underlying  all  these  various 
classes  of  eases  which  may  be  relied  on  to  carry  us  through 
them  all  when  we  can  be  sure  of  its  application.  It  is  that 
whenever  it  apj)ears  that  a  court  possessing  judicial  powers 
has  rightfully  obtained  jurisdiction  of  a  cause,  all  its  subse- 
quent proceedings  are  valid,  however  erroneous  they  ma}'  be, 
until  they  are  reversed  on  error,  or  set  aside  by  some  direct 
proceeding  for  that  purpose.  The  only  difficulty  in  applying 
the  rule  is  to  ascertain  the  question  of  jurisdiction. "(/i) 

It  is  a  legitimate  conclusion,  from  the  preceding  quotation, 
that  the  same  court  may  be  one  of  general  jurisdiction  in 
regard  to  some  subjects,  and  of  special  in  regard  to  others,  or 
superior  and  inferior  at  once,  from  the  nature  of  the  subjects 
submitted,  and  the  mode  of  determining  them  respectively. 

(A)Harvoy  v.  Tylor,  2,  Wall.  342. 


26  PRESUMPIIONS. 


CHAPTER  VI. 

PEESU:^IPTIONS. 

f  30.  Presumptions  as  to  superior  courts  and  to  inferior  courts. 

31.  Classiticatiou. 

32.  Wliat  is  presumed  as  to  superior  courts. 

33.  How  jurisdiction  of  a  superior  court  impeached. 

34.  The  genera]  rule  of  presumption. 

35.  How  it  is  limited  as  to  superior  courts. 

3(3.  HoAV  limited  in  reference  to  the  mode  of  procedure. 

37.  Particular  jurisdictional  facts  presumed. 

38.  KegularJtj'  of  proceedings  presumed. 

39.  Presumptions  conclusive  as  to  discretion. 

40.  Presumiitions  adverse  as  to  limits  of  jurisdiction  of  inferior  courts. 

41.  Specific  facts  must  appear. 

42.  Examples. 

43.  Powers  of  inferior  court  subject  to  a  strict  construction. 

44.  Justitication  of  ministerial  acts  under  proceedings  of  courts. 

45.  Legislature  may  change  presumptions. 

40.  Presumption  of  regularity  as  to  inferior  courts. 

§  30.  The  preceding  chapter  has  led  the  way  to  a  very 
important  plineiple  of  jtirisdiction,  namely,  the  exactly  oppo- 
site points  of  view  in  which  the  decisions  of  superior  and 
of  inferior  courts  are  regarded,  which  may  be  briefly  stated 
thus  in  general  terms :  nothing  will  be  presumed  to  be  with- 
out the  jurisdiction  of  a  superior  court  of  general  jurisdiction, 
and  nothing  presumed  to  bo  within  the  jurisdiction  of  an 
inferior  court  having  limited  or  special  jurisdiction.  We  pro- 
ceed to  consider  the  illustrations  and  logical  consequences  of 
the  principle  tiuis  standing  upon  the  distinction  between  the 
two  classes  of  tribunals. 

§  31,  The  presumptions,  however,  are  also  of  two  classes 
in  regard  to  all  courts :  (1)  those  concerning  the  possession 
of  jurisdiction;  and  (2)  those  concerning  its  proper  exercise. 
We  consider  these  in  their  order. 

§  32.   In  regard  to  superior  courts,  it  is  not  only  presumed 


PKESUAIPTIONS.  2T 

that  they  have  jurisdiction,  but  also  every  presumption  must 
be  iiidulged  in  all  things  necessary  to  the  jurisdiction  of  a 
court  having  exclusive  jurisdiction  of  the  subject.  And  in 
such  case,  the  judgment  is  not  liable  to  attack  by  other  par- 
ties, and  in  another  tribunal,  for  the  supposed  irregularity 
of  proceedings.  A  domestic  judgment  on  a  subject  witliin 
the  jurisdiction  of  the  court,  and  apparently  regular  on  the 
record,  is  to  be  taken  as  conclusive  of  the  regularity  of  pro- 
ceedings by  which  jurisdiction  was  acquired  over  the  parties^ 
unless  attacked  in  a  direct  proceeding,  (a) 

§  33.  For,  in  a  direct  jjroceeding,  the  jurisdiction  of  even 
a  superior  court  may  be  assailed  and  disproved  by  parol  evi- 
dence, (6)  the  rule  being  applied  in  a  conclusive  manner  only 
in  a  collateral  proceeding,  as,  where  the  record  of  a  judgment 
or  decree  is  relied  on  collaterally,  jurisdiction  must  be  pre- 
sumed in  favor  of  a  superior  court  conclusively,  although  it 
be  not  alleged  or  fails  to  appear  in  the  record ;(c)  but  other- 
wise the  presumption  is  liable  to  be  rebutted.  And  also,  on 
apparent  defect  jurisdiction  may  be  impeached  collaterally ; 
as,  for  instance,  where  a  summons  either  shows  a  want  of 
service  or  insufficient  service,  and  the  record  does  not  show 
that  the  court  found  that  it  had  jurisdiction,  the  presump- 
tion will  be  overcome,  and  it  will  be  held  that  the  court 
acted  upon  the  insufficient  service,  since  the  presumption 
must  then  be  that  the  court  acted  on  the  service  appearing  in 
the  record. (c^) 

§  34.  The  rule  is  that  jurisdiction  is  to  be  presumed  until 
the  contrary  is  proved.  And  so,  where  one  contended  that 
entire  copies  of  the  record  were  annexed  to  his  bills,  but 
only  portions  were  incorporated  in  the  bills,  and  these  por- 
tions did  not  show  the  appearance,  plea,  and  submission 
to  judgment;  whereas  the  portions  annexed,  but  not  set  out,^ 
did  show  these  particulars,  the  court  stated  the  rule,  and  then 
remarked:     "We  certainly  should  not  hold  the  contrary  to  be 

((/)l)!iick  V.  Epperson,  40  Texas,  (f)Swc';ircngen   v.  (lulick,   67  111. 

11'.).  211. 

(/y)SpauIding  v.   Record,    65   Me.  {d)  Clark    v.    Thompson,   47   IIL 

22U.  27. 


28  PRESUMPTIONS. 

proved  as  long  as  any  part  of  the  record  in  which  t}ie  fact  of 
jurisdiction  would  be  likely  to  be  shown  is  withheld. "(<?) 

§  35.  Furthermore,  the  rule  of  presumption  as  to  superior 
courts  is  limited,  as  to  persons,  to  those  within  their  territorial 
limits — those  who,  therefore,  can  be  reached  by  their  process. 
And  if  it  appears,  either  by  the  record  or  by  extrinsic  evidence, 
that  defendants  were  beyond  reach  at  the  time  of  alleged 
service  on  them,  the  burden  of  proof  as  to  jurisdiction  is 
changed  to  the  other  side,  and  thrown  upon  the  party  invok- 
ing the  benefit  or  protection  of  the  judgment  and  decree. (/) 

§  36.  Likewise,  it  is  limited  to  proceedings  in  general 
accordance  with  the  course  of  the  common  law.  In  regard  to 
other  proceedings,  the  rule  is,  that  superior  courts,  although 
possessing  general  authority  in  other  respects,  only  exercise 
a  limited  and  special  jurisdiction.  And  the  rule  regarding 
inferior  courts  aj)plies  quoad  hoc  herein  to  them..(g)  Hence, 
as  the  jurisdiction  of  the  United  States  courts  is  merely 
statutory,  there  is  no  presumption  in  favor  thereof,  but  the 
jurisdictional  facts  must  always  appear,  (/i)  The  principle  is, 
that  if  proceedings  are  not  as  a  ivhole  in  accordance  with  the 
course  of  the  common  law,  jurisdiction  will  not  be  presumed 
even  as  to  a  court  of  general  powers. (i) 

§  37.  Not  only  jurisdiction  is  presumed,  but  also  the  par- 
ticular facts  included  in  the  jurisdiction,  so  that  they  need 
not  be  averred  in  a  declaration,  as,  for  instance,  that  the 
lands  on  which  a  mortgage  is  foreclosed  lie  in  the  county,  (j) 
The  Iowa  supreme  court  say:  "The  court  rendering  the 
judgment  was  one  of  general  jurisdiction;  as  such,  a  want 
of  authority  to  act  will  not  be  presumed.  Nor,  to  affirma- 
tively establish  its  jurisdiction,  is  it  necessar}'  that  the  facts, 
evidence,  or  circumstances  conferring  it,  should  be  set  out  in 
the  record.  And  should  the  record  disclose  nothing,  jurisdic- 
tion over  the  person,  as  well  as  the  subject-matter,  will  always 

(e)Slocura  v.   Steam,  etc.,  Co.  10  (;7)Ibid;    Grfi}'    «.   Stcaiuhoat,    6 

K.  1.  116.  Wis.  59. 

(/jGray  v.  Lurrimore,  2  Abbott,  (h)Ex parte  Smith,  94  U.  S.  45r). 

<U.  S.)  ->h.  (/)Preiili.s.s  f).  Parlis,  65  Me.  .■)d9. 

(jjlJrowntield  w.  Weight,  9  Ind.  305  ;       Murkel  v.  Evans,  47  Ind.  329. 


PRESUMPTIONS.  29 

be  presumed  when  the  validity  of  the  judgment  is  questioned 
collaterally.  On  the  other  hand,  if  it  is  shown  by  the  record 
that  the  judgment  was  rendered  when  no  jurisdiction  was 
acquired  over  the  subject-matter  or  the  person,  it  is  void,  and 
will  be  so  treated  in  a  proceeding  direct  or  collateral. "(/t) 

§  38.  The  regularity  of  subsequent  proceedings — that  is  to 
say,  the  exercise  of  jurisdiction  obtained — rests  on  the  same 
principle  until  sucessfully  impeached;  as,  for  instance,  that  a 
cause  was  regularly  continued  till  a  subsequent  term,  and  that 
parties  were  in  court  until  the  cause  was  tinally  disposed  of.(Z) 
And  to  impeach  the  proceedings  irregularities  must  be  affirm- 
atively shown,  as  also  all  acts  or  omissions  affecting  the 
validity  of  the  judgment. (m)  The  sufficiency  of  the  evi- 
dence on  which  a  judgment  rests  is  likewise  presumed.(H) 

§  39.  Presumptions  are  conclusive,  and  not  to  be  rebutted 
where  a  matter  is  confided  to  discretion,  and  no  appeal  is 
given".  "It  is  a  universal  principle  that  where  power  is  dele- 
gated to  any  public  officer  or  tribunal  over  a  subject-matter, 
and  its  exercise  is  confided  to  his  or  their  discretion,  the  acts 
so  done  are  binding  and  valid  as  to  the  subject-matter,  and 
individual  rights  will  not  ba  disturbed  collaterally  for  any- 
thing done  in  the  exercise  of  that  discretion  within  the  author- 
ity and  power  conferred.  The  only  questions  which  can  arise 
between  an  individual  claiming  a  right  under  the  acts  done 
and  the  public,  or  any  person  denying  its  validity,  are  power 
in  the  officer,  and  fraud  in  the  j^arty.  All  other  questions  are 
settled  by  the  decision  made,  or  the  act  done,  by  the  tribunal 
or  officer,  whether  executive,  legislative,  judicial,  or  special, 
unless  an  appeal  is  j)rovided  for,  or  other  revision  by  some 
appellate  or  supervisory  tribunal  is  prescribed  by  law."(o) 

§  40.  In  regard  to  inferior  courts  the  presumption  is  ad- 
verse, and  their  action  must  be  confined  strictly  within  the 
prescribed  limits,  and  must  appear  so  on  the  face  of  the  pro- 
ceedings, as  also  all  the  facts  and  grounds  of  the  jurisdiction. 

(/■)F>ak(T  V.   ChapliiK',  12  la.  204,  (n)Grignon's   Lessee   v.  Astor,  2 

and  cases  cited.  How.  (U.  S.)  340. 

(/)IIousht).The  People,  66  Ill.lSl.  (o)\J.  S.  v.  Arredondo,  6  Pet.  729. 
('rt()People  V.  Kobinson,!?  Cal.371. 


50  rRESUMl'TIOXS. 

The  rule  is  still  more  stringent  in  criminal  proceedings,  even 
in  a  preliminary  examination  before  a  justice  of  the  peace, (7>j 
or  the  taking  of  a  recognizance  b}-  a  justice. ((/) 

And  in  a  civil  case  the  docket  of  the  justice  must  show  that 
he  had  jurisdiction  of  the  plaintifif  as  well  as  defendant. (r) 

§  41.  Hence  a  general  averment  of  jurisdiction  amounts  to 
nothing;  the  facts  upon  which  it  depends  must  specifically 
appear. (_sj  Nor  is  it  sufficient  that  jurisdiction  may  be 
inferred  argumentatively  from  the  averments,  but  the  juris- 
diction must  be  positively  averred,  and  the  fact  on  which  it 
depends  expressl}'  set  forth. (/)  The  facts  to  be  thus  set  forth 
are  defined  to  be  all  such  as  in  the  absence  thereof  the  court 
oainiot  rightfully  hear  and  determine  any  question  concera- 
ing  the  matter  in  dispute  ;(?t)  that  is  to  say,  every  fact  essen- 
tial to  the  jurisdiction(y)  should  appear  in  the  record. 

§  42.  The  principle  applies  to  the  laying  out  of  a  road,  so 
that  j)roceedings  for  this  purpose  must  show  affirmatively 
that  the  road  established  lies  within  the  limits  of  the  county, 
or  the  jurisdiction  cannot  be  sustained;  nor  is  the  objection 
waived  by  the  failure  of  a  party  to  appear  and  allege  the 
want  of  jurisdiction. (/f)  It  also  applies  to  an  officer  impos- 
ing a  military  fine,  as,  where  a  warrant  was  issued  by  a 
captain  against  a  private  for  "a  fine  legally  imposed  upon 
him  for  neglecting  to  perform  military  duty,"  but  the  warrant 
did  not  state  by  whom  the  fine  was  imposed,  it  was  held  that 
the  warrant  was  void,  and  the  officer  was  liable  to  trespass 
for  arresting  the  private. (x)  Moreover,  it  has  been  strangely 
held  that  it  may  apply  even  to  a  supreme  court,  as  in  Missis- 
sippi, formerly,  where  the  supreme  court  said  of  itself:  "By 
a  uniform  train  of  decisions  in  this  tribunal,  from  its  estab- 
lishment to  the  present  time,  it  has  been  held  to  be  a  court 

(;))State  ?;.  Metzger,  2(j  Mo.  66.  ((OBoard  of  Com.  «.   Markle.  4*', 

(g)State«.  Gatchenheimer,  30Ind.  Ind.  111. 
63.  (t;)State   v.   Ely,  Judge,   4.i   Ala. 

(r)Clark    v.     Holmes,    1     Doug.  575. 
-<Mich.)  400.  (?r)Commi.s.  v.  Thomp.-^on,  IS  Ala. 

(.<!)People  V.  Koeber,  7  Hill  (N.  Y.)  694. 
41.  (a)Hall  v.  Howd,  10  Conn.  r.i4. 

(f)Bro\vue  v.  Keene,  S  Pet.  115. 


PRESUMPTIONS.  31 

of  limited,  and  not  of  general,  jurisdiction — a  court  scrupu- 
lously jealous  of  its  own  powers,  and  one  that  could  exercise 
none  except  in  cases  where  they  were  expressly  given  by  law, 
without  resorting  to  forced  constructions,  intendment,  or 
implication.  *  *  *  This,  then,  is  a  court  of  limited  juris- 
diction, and  in  no  case  can  its  jurisdiction  exist  unless  it 
ai3pear."(?y)     Probably  it  is  not  so  held  there  now. 

§  43.  It  results  necessarily  from  the  general  principle 
w'hich  we  are  considering,  that  the  powers  of  a  court  of  infe- 
rior jurisdiction  must  be  subject  to  a  strict  construction,  so 
that  they  cannot  be  enlarged  by  implication, (.2)  But  this 
rule,  as  we  have  already  intimated,  does  not  extend  so  far  as 
to  exclude  all  implications  in  regard  to  the  proper  and  neces- 
sary exercise  of  these  powers.  The  rule,  with  its  limitations, 
has  been  thus  stated:  "The  authority,  however,  to  do  certain 
acts,  or  to  exert  a  certain  degree  of  power,  need  not  be  given 
in  express  words,  but  may  be  fairW  inferred  from  the  general 
language  of  the  statute;  or  if  it  be  necessary  to  accomplish 
its  objects,  and  to  the  just  and  useful  exercise  of  the  powers 
which  are  expressly  given,  it  may  be  taken  for  granted. "(r?) 
But  nothing  is  to  be  held  granted  by  implication  except  what 
is  absolutely  necessary  to  a  full  exercise  of  exj)ressly  granted 
powers,  (t) 

§  44.  Where  a  party  undertakes  to  justify  the  taking  of 
goods  under  a  process  sued  out  by  himself  from  a  limited 
court,  he  must  show  that  the  court  had  jurisdiction  of  the 
subject-matter,  and  further,  that  by  taking  the  legal  steps  it 
acquired  jurisdiction  of  the  defendant. (c)  And  so,  if  a  party 
justifies  under  an  officer  having  a  limited  authority,  he  must 
show  that  the  officer  had  jurisdiction  of  the  cause  and  the 
parties,  and  the  law  authorized  the  issuance  of  the  order  un- 
der which  he  acted — as,  for  example,  in  the  proceedings  of 
school  officers.  But  there  is  a  qualification  to  this,  namely : 
where  an  order  on  its  face  is  such  as  the  officer  may  make 
for  the  guidance  and  control  of  another  officer,  the  latter  may 

(^)Tjinn  v.  Kyle,  Walker,  3ir).  (i)School  Insp.  v.  People  ex  rel. 

(2)Th()mpsoii  «.  Cox,  8  Jones  (X.  20  111.  530. 

C)  31.5.  [c]  Ford   v.    Babcock,    1    Denlo, 

(rt)Dubois  t).  Sands,  43  Barb.  412.  158. 


32  PRESUMPTIONS. 

justify  under  the  order  without  showing  the  jurisdiction  of 
the  particular  proceeding. (<Z)  It  is  a  settled  principle  that, 
where  courts  of  a  special  or  limited  jurisdiction  exceed  their 
powers,  their  whole  proceedings  are  coram  non  jiulice,  and  all 
concerned  in  such  void  proceedings  are  trespassers.  («) 

§  45.  But  it  is  competent  to  a  legislature  to  change  or 
qualify  the  principles  of  presumption  we  have  been  consider- 
ing, at  discretion,  and  where  the  ol)servance  of  the  general 
rule  is  dispensed  with  in  a  particular  case,  the  law  creating 
the  exemption  is  alone  to  be  regarded. (/) 

§  46.  As  to  the  exercise  of  jurisdiction  once  acquired,  the 
presumption  of  regularity  is  the  same  as  to  both  superior  and 
inferior  courts.  The  subsequent  proceedings  are  presumed 
to  be  regular,  unless  the  contrary  is  affirmatively  shown,  and 
this  extends,  too,  even  to  justices  of  the  peace. (^r)  So  that 
the  statement  of  the  rule  is  that,  "when  the  jurisdiction  of 
even  a  limited  court  is  once  established,  it  is  entitled  to  the 
same  presumption  in  favor  of  its  acts  with  a  superior  one, 
and  subsequent  irregularities  will  not  render  its  proceedings 
void."  In  the  above  statements  the  authorities  are  in  accord, 
so  far  as  subject-matter  of  jurisdiction  goes.  We  shall  speak 
of  statutory  jurisdiction  hereafter. 

(fZ)Beanet.tt).  Burch,  1  Denio,  145.  proceed  is    conferred    by  statute, 

(e)Walbridge  v.  Hall,  3  Vt.  114;  and  the  manner  of  obtaining  juris- 

Lange    v.    Benedict,   48   How.    Pr.  diction  is  prescribed  by  statute,  the 

465  ;  Kemp  v.  Kennedy,  1  Pet.  (C.  mode  of  proceeding  is  mandatory, 

C.)  36.  and  must  appear  to  bestrictl}"  com- 

(/) Wight     e.      Warner,     Doug.  plied  with.     Beisch  v.  Coxe,  81  Pa. 

(Mich.)  384.  yt.  349.     ^\it,A'iiXo  general  jurmiic- 

(^) Little  ».  Sinnett,  7  Clarke  (la.)  tiori,  even  due  notice  will  be  pre- 

334;  Smith?).  Engle,  44  la.  26.5.  sumed  in  support  of  a  judgment, 

Excepting,  of  course,  proceedings  (Guilford  v.  Love,  49  Tex.  716  ;)  and 

which   are  required  to   be  entered  so  in  regard  to  the  regularity  of  a 

of  record,  (Church  v.  Crossman,  49  grant  of  a  new  trial.     Shrewsbury 

la.  444;)  as,  for  example,  when  the  v.  Miller  et  al.,  10  W.  Va.  116.     Ju- 

jurisdiction    of    a    United    States  risdiction   having    been    acquired, 

court  depends  upon  the  citizenship  the  proceedings  are  not  to  be  sub- 

of    the    parties,    such    citizenship  ject  to  collateral  attack;  aud  so  a 

must   be  explicitly  shown  by   the  notice  of  confirmation  in  proceed- 

record,  and  not  merel}^  the  fact  of  ings  for  condemnation  of  lands  for 

residence — this  being  fundamental.  railroad  purposes  will   be   conclu- 

Robertson  v.   Clark,  97  U.   S.  646.  sively   presumed.     Allen  ».  K.  R., 

Indeed,  whenever  an  authority  to  15  Hun.  81. 


CONSTITUTIONAL    LIMITATIONS.  33 


CHAPTER  VII. 

CONSTITUTIONAL    LIMITATIONS. 

i  47.  Different  departments  of  government. 

48.  Discretionary  acts  not  controllable. 

49.  Example  in  Missouri. 

50.  No  waiver  allowed  by  executive  officer,  etc. 

51.  Presumption  as  to  executive  action. 

52.  Courts  will  interfere  in  personal  contests  for  a  state  office. 

53.  Courts  cannot  compel  collection  of  public  revenue  by  the  executive 

department. 

54.  National  boundaries. 

55.  Unconstitutional  laws. 

§  47.  It  is  a  fundamental  principle  that  the  three  depart- 
ments of  our  national  and  state  governments — the  judicial, 
legislative  and  executive — are  co-ordinate  in  their  spheres  of 
action.  No  one  being  subordinate,  except  in  a  quite  limited 
sense,  the  control  of  each  over  the  other  extends  no  further 
than  a  mere  check  or  balance  requires,  taken  in  a  general 
sense.  And  so,  where  a  member  of  the  house  of  representa- 
tives applied  for  a  mundamus  to  compel  the  speaker  to  send  a 
bill  which  had  passed  the  house  to  the  senate  for  its  action 
thereon,  the  application  was  refused,  and  the  supreme  court, 
to  which  the  application  was  made,  remarked:  "This  court 
will  not  interfere  with  either  of  the  other  co-ordinate  depart- 
ments of  the  government  in  the  legitimate  exercise  of  their 
jurisdiction  and  powers,  except  to  enforce  mere  ministerial 
acts  required  by  law  to  be  performed  by  some  officer  thereof, 
and  not  then,  if  the  law  leaves  it  discretionary  with  the  offi- 
cer or  department.  To  this  extent,  and  no  further,  do  the 
decisions  of  this  court  go  upon  this  branch  of  the  subject.  * 
*  *  Among  all  the  cases  and  text-books,  none  goes  to  the 
length  of  laying  down  the  doctrine  that  the  speaker  of  the 
house  of  representatives,  or  of  a  legislative  body,  in  a 
v.l— 3 


34  CONSTITUTIOXAL    LIMITATIONS. 

matter  arising  in  the  regular  course  of  legislation  upon 
which  he  is  called  to  decide,  can  be  controlled  by  this 
or    any  other    tribunal,  except   by  the    one   over  which   he 

presides,  "(a)* 

Tile  language  of  the  supreme  court  of  the  United  States  is 
still  stronger,  namely  :  "The  jiower  of  the  courts  of  the  United 
States  to  command  the  performance  of  any  dntj,  by  either  of 
the  i^rincipal  executive  dejiartments,  or  such  as  is  incumbent 
upon  any  executive  of&cer  of  the  government,  has  been 
strongly  contested  in  this  court ;  and  in'  so  far  as  that  power 
ma}'  be  supposed  to  have  been  conceded,  the  concession  has 
been  restricted  b}-  qualifications  which  would  seem  to  limit  it 
to  acts  or  proceedings  by  the  officer  not  implied  in  the  several 
and  inherent  functions  or  duties  incident  to  his  office — acts  of  a 
character  rather  extraneo^us,  and  required  of  the  individual 
rather  than  of  the  functionary.  Thus  it  has  been  ruled  that 
the  only  acts  to  which  the  power  of  the  courts  by  mandamus 
extends  are  such  as  are  purely  ministerial,  and  with  regard 
to  which  nothing  like  judgment  or  discretion  in  the  perform- 
ance of  his  duties  is  left  to  the  officer,  but  that  wherever  the 
right  of  judgment  or  decision  exists  in  him,  it  is  he  and  not 
the  courts  who  can  regulate  its  exercise. "(6)  Justice  McLean 
dissented  in  the  case,  but  not  from  the  doctrine  in  the  above 
quotation.  + 

§  48.  I  do  not  think,  indeed,  that  there  is  any  variance  of 
opinion  as  to  the  principle  that  discretionary  acts  are  not 
controllable  by  the  courts  as  to  the  other  departments  of  the 
government,  and  that  the  performance  of  a  ministerial  duty 

(a)Ex  parte  Echols,  3'i)  Ahi.  lOil  dicial    adininistratiou,   and    whi<'h 

*In    some    states    the    constitu-  cannot   be  affected    by   legislative 

tion  gives  the  legislature  the  right  action— such  as  a  disqualification  of 

to  call  for  the  opinion  of  the  jus-  one   of  the  members.     Answer  of 

tices  of  the  supreme  court  on  im-  the  .lustices,  122  Mass.  600. 

portant  questions  of  law,  etc.    And  (6)U.  S.  v.  Guthrie,  17  How.  ?,ni. 

it   has   been  held  that  this  power  tin  Wi-sconsin  it  is  held  that  a 

only  extends  to  important  questions  secretary  of  state  may  be  compelled 

of  law  arising  in  the  direct  business  to  cancel  the  license  of  a  foreign  in- 

of  legislation,  and  not  to  a  question  surance  company.     State  ex  rel.  v. 

arising  merely  in  the  course  of  ju-  Doyle,  40  Wis.  176,  220. 


CONSTITUTIONAL    LIJ[ITATIONS.  35 

may  be  enforced.*  But  the  difficulty  is  to  distinguish  be- 
tween an  act  performed  in  the  ordinary  discharge  of  official 
duties  and  a  ministerial  act.  An  elaborate  case  arose  involv- 
ing this  question,  thus:  Under  a  general  law  of  July,  18-32, 
the  secretary  of  the  navy  was  made  trustee  of  the  navy  pen- 
sion fund,  with  the  duty  charged  of  granting  and  paying  pen- 
sions out  of  it.  In  1837,  a  resolution  of  congress  specially 
provided  for  a  pension  and  half-pay  arrearages  to  the  widow 
of  Commodore  Decatur.  The  secretary,  on  her  application  for 
pay  both  under  the  general  law  and  the  resolution,  decided, 
with  the  advice  of  the  attornej^  general,  that  she  was  not 
entitled  to  both,  but  gave  her  the  election.  She  elected  to 
receive  under  the  law,  but  without  waiving  her  claim  under 
the  resolution,  and  petitioned  for  a  inauddiniis  to  compel  the 
secretary  to  pay  the  other  also.  The  circuit  court  for  the 
District  of  Columbia  refused  the  writ,  and  on  appeal  the  re- 
fusal was  sustained  by  the  sujjreme  court,  which  said:  "In 
the  case  of  Kendall  v.  Tlic  United  States,  12  Peters,  524,  it 
was  decided  in  this  court  that  the  circuit  court  for  AVashing- 
ton  county,  in  the  District  of  Columbia,  has  the  power  to  issue 
a  mandantns  to  an  officer  of  the  federal  government  com- 
manding him  to  do  a  ministerial  act.  The  first  question, 
therefore,  to  be  considered  in  this  case  is  whether  the  duty 
imposed  upon  the  secretary  of  the  navy,  by  the  resolution,  in 
favor  of  Mrs.  Decatur,  was  a  mere  ministerial  act. 

"The  duty  required  by  the  resolution  was  to  be  i^erformed 
by  him  as  the  head  of  one  of  the  executive  departments  of  the 
government,  in  the  ordinary  discharge  of  his  official  duties. 
In  general,  such  duties,  whether  imposed  by  act  of  congress  or 
by  resolution,  are  not  mere  ministerial  duties.  The  head  of  an 
executive  department  of  the  government,  in  the  administration 

*Wh('n  a  discretion  is  given  to  HUita  ex  rel.  Cohen,  28  La.  An.  645. 

any  branch  of  the  government,  no  And  so  a  court  cannot  taltc  upon 

other  branch  is  authorized  to  inter-  itself  the  prerogative  of  compelling 

fere   with   it.      March   v.   State,  44  the  promulgation  of  a   law  wIkmc 

Tex.  64.      Thus,  where  a  governor  this  is  neglected  by  the  legislative 

has  power  to  remove  an  officer  for  or  executive  department.     State  o. 

cause,  the  exercise  of  that  power  Des  Londe,  27  Jja.  An.  71. 
cannot  be  inquired  of  by  the  courts. 


36  CONSTITUTIONAL    LIMITATIONS. 

of  the  various  and  important  concerns  of  his  oflQce,  is  contin- 
ually retjuired  to  exercise  judgment  and  discretion.  He  must 
exercise  his  judgment  in  expounding  the  laws  and  resolutions 
of  congress,  under  which  he  is  from  time  to  time  required  to 
act.  If  he  doubts,  he  has  a  right  to  call  on  the  attorne}'  gen- 
eral to  assist  him  with  his  counsel,  and  it  would  be  difficult 
to  imagine  why  a  legal  adviser  was  provided  by  law  for  the 
heads  of  departments,  as  well  as  for  the  president,  unless 
their  duties  were  regarded  as  executive,  in  which  judgment 
and  discretion  were  to  be  exercised.  If  a  suit  should  come 
before  this  court,  which  involved  the  constraction  of  any  of 
these  laws,  the  court  certainly  would  not  be  bound  to  adopt 
the  construction  given  by  the  head  of  a  department.  And  if 
they  supposed  his  decision  to  be  wrong  they  would,  of  course, 
so  pronounce  their  judgment.  But  their  judgment  upon  the 
construction  of  a  law  must  be  given  in  a  case  in  which  they 
have  jurisdiction,  and  in  which  it  is  their  duty  to  interpret 
the  act  of  congress,  in  order  to  ascertain  the  rights  of  the  par- 
ties in  the  cause  before  them.  The  court  could  not  entertain 
an  appeal  from  the  decision  of  one  of  the  secretaries,  nor 
revise  his  judgment  in  any  case  where  the  law  authorized  him 
to  exercise  discretion  or  judgment.  Nor  can  it,  by  inandainns, 
act  directly  upon  the  officer,  and  guide  and  control  his  judg- 
ment or  discretion  in  the  matters  committed  to  his  care  in 
the  ordinary  discharge  of  his  official  duties,  "(c) 

§  49.  In  Missouri,  it  has  even  been  held  that  where  state 
"bonds  are  payable  on  their  face  in  gold  and  silver,  but  the  leg- 
islature directs  the  fund  commissioners  to  paj'  them  in  legal- 
tender  currency,  the  courts  will  not  entertain  a  petition  to 
compel  the  fund  commissioners  to  pay  them  in  gold  and  sil- 
ver— although  holding  such  payment  to  be  the  duty  of  the 
commissioners — since  this  is  a  matter  of  public  faith  only, 
subject  exclusively  to  the  legislative  control.  And,  although 
the  change  may  be  in  violation  of  good  faith  in  the  payment, 
the  courts  cannot  interfere. (r,Z)  And  so  it  has  been  held  that, 
as  the  administration  of  the  funds  of  a  public  treasury  belongs 

(c)Decalur  «.   Paulding,  14  Pet.  (d)State   ex    rel.   v.    Hays   et    al., 

614.  Comrs,  50  Mo.  36. 


CONSTITUTIONAL    LIMITATIONS.  0  4 

alone  to  the  executive  department,  the  courts  will  not  enter- 
tain an  action  hy  county  and  school  commissioners  against 
one  holding,  as  bailee,  m(meys  belonging  to  the  different 
departments  of  the  government,  as  if  those  moneys  were  assets 
subject  to  the  control  of  a  court  of  equity. (f)  And  in  Texas, 
where  a  petition  was  brought  to  compel,  by  mandamus,  the 
state  comptroller  to  countersign  and  register  railroad  bonds, 
under  "An  act  to  incorporate  the  International  Railroad  Com- 
pany, and  to  provide  for  the  aid  of  the  state  of  Texas  in  con- 
structing the  same,"  it  was  held,  by  a  divided  court,  that  the 
duty  was  not  of  a  ministerial  nature,  compellable  by  manda- 
mus.(f) 

§  50.  Nor  will  a  court  take  jurisdiction  in  order  to  declare 
the  law  or  construe  it,  even  where  the  officer  waives  his  con- 
stitutional exemption,  and  joins  with  the  relator  in  asking  the 
exercise  of  this  jurisdiction.  In  a  case  of  this  kind  the  court 
held  that  "the  exemption  from  coercion  by  the  courts  is  not 
a  personal  privilege  of  the  incumbent  of  the  office,  created  for 
his  benefit,  and  to  be  asserted  or  waived  at  his  pleasure.  An 
executive  officer  cannot  surrender  the  defences  which,  not  for 
his  but  for  the  public  good,  the  constitution  has  placed  around 
his  office.  Still  less  can  his  consent  authorize  this  court  to 
transgress  the  constitutional  limitation  of  its  powers  and 
assume  a  jurisdiction  which  by  the  fundamental  law  it  is  ex- 
pressly forbidden  to  exercise. "(^^)  And  so  a  governor  cannot 
snljmit  to  the  courts  in  this  way  any  more  than  a  subordinate 
officer. (/()  But  there  is  not  a  universal  acquiescence  herein. 
The  supreme  court  of  Illinois,  in  1872,  accepted  a  voluntary 
submission  of  Governor  Palmer,  and  thereon  determined  the 
effect  of  the  constitution  of  1870  on  the  office  of  police  mag- 
istrate in  the  city^  of  Chicago,  and  remarked:  "This  volun- 
tary submission  by  the  executive  of  the  matter  involved,  to 
the  adjudication  of  this  court,  relieves  the  court  of  all  consid- 

(fi)Commi8sioners   «.    Bank,   7   S.  (grjCounty   Treasurer  9.  Dike,  20 

C.  78.  Minn.  366. 

(/)  Bledsoe    «.    R.    R.,    40    Tex,  (/i)People  v.  Governor,  29  Mich. 

559.  329. 


38  CONSTITUTIONAL    LIMITATIONS. 

eration  of  the  question  as  to  the  authority  of  the  court  to 
coerce  the  performance  of  a  public  duty  hy  the  executive  of 
the  state,  and  we  may  proceed  to  determine  the  question  as  if 
it  were  a  controversy  between  private  individuals. "(i)  It 
seems  to  me,  however,  that  the  doctrine  that  "consent  cannot 
confer  jurisdiction"  apj)lies  here,  in  the  absence  of  an  express 
constitutional  warrant.  But  I  suppose  there  is  no  barrier 
to  having  official  bonds  run  to  "The  Governor,"  and  then  suit 
may  be  brought  for  In-each  in  the  name  of  the  governor  for  the 
use  of  the  injured  party. (J) 

§  bl.  It  is  held  that  the  presumption  is  well  nigh  conclu- 
sive that  any  duty  whatever  entrusted  to  the  head  of  the  gov- 
ernment— as  the  president  of  the  United  States,  or  the  gov- 
ernor of  a  state — is  executive,  and  not  ministerial;  so  that 
any  special  act  entrusted  to  him  is  to  be  regarded  as  confided 
thus  because  his  superior  judgment,  discretion,  and  sense  of 
responsibility  would  be  likely  to  insure  a  more  accurate,  faith- 
ful, and  discreet  performance  than  could  be  expected  ordi- 
narily from  an  inferior  oflicer.(A;)  And  so  it  has  been  held 
the  courts  have  no  power  to  compel  a  secretary  of  state  to 
promulgate  laws  enacted  by  the  legislature. (^) 

§  52.  But  a  court  will  interfere  in  a  case  of  contest  as  to 
the  personal  right  to  a  state  office,  and,  where  there  is  a  hin- 
drance thrown  in  the  way  of  him  who  is  determined  to  be  the 
lawful  incumbent,  will  aid  him  in  assuming  the  duties  of  the 
office.  But  in  such  a  case  in  Texas,  where  an  order  was  given, 
it  does  not  seem  to  have  been  peremptory  so  as  to  authorize  a 
subsequent  proceeding  for  contempt  on  disobedience,  but  was 
in  this  form  :  "The  relief  now  invoked  we  believe  to  be  within 
our  jurisdiction,  and  in  the  solemn  discharge  of  our  official 
duties  we  do  order,  adjudge,  and  decree  that  A.  B.  do,  by  the 
hour  of  5  p.  M.  this  day,  deliver  to  C.  D.,  treasurer  j^fo  tern 

(2)People  V.  Palmer,  Governor,  64  (A;)People  v.  Governor,  29   Mich. 

111.  42.  329. 

(j)See  The  Governor,  for  use,  etc.,  (;)Honoy  v.  Davis,  38  Tex.  71;  (see 

0.  Woochvorth,  ^3  111.  254,  and  The  page  35,  supra,  note,  of  this  work.) 
Governor,  for  use,  etc.,  v.  Dodd,  81 
Ul.  1G2. 


CONSTITUTIONAL    LIMITATIONS.  39 

of  the  state  of  Texas,  all  the  keys  and  secrets  of  the  combina- 
tions of  the  locks  of  the  safes  and  vaults  of  the  treasury,  and 
that  he  no  longer  hinder  or  delay  the  said  C.  D.  from  the  due 
execution  of  the  office  of  treasurer  of  the  state  of  Texas,  and 
that,  in  default  of  due  compliance  with  this  order,  the  said 
C.  D.  do  proceed  to  open  the  vaults  and  safes  of  the  office  of 
the  state  treasury  by  any  available  means  within  his  power, 
having  due  regard  to  the  preservation  of  public  property." (?n.) 
But  certainly  the  order  could  be  enforced  by  proceedings  in 
contempt  for  disobedience,  if  the  order  itself  was  proper. 

§  53.  Courts  have  no  power  to  compel  the  executive  depart- 
ment to  levy  on  property  to  collect  the  public  revenue,  nor  to 
restrain  it  from  doing  so,  nor  dictate  as  to  the  kind  or  suffi- 
ciency of  evidence  under  an  enabling  statute  which  shall  be 
necessary  to  authorize  such  levy. 

§  54.  The  settlement  of  the  national  boundaries  is  a  polit- 
ical question,  and  therefore  not  within  the  province  of  the 
courts;  and  even  when  individual  rights  depend  on  such 
boundaries,  the  duty  of  the  courts  is  simply  to  determine 
those  rights  according  to  the  principles  laid  down  by  the  polit- 
ical department  of  the  nation. (?i) 

§  55.  The  courts  are  not  in  any  instance  at  liberty  to 
decide  a  cause  in  a  manner  contrary  to  the  provisions  of 
the  constitution ;  and,  therefore,  it  may  become  a  duty  to 
refuse  to  enforce  an  unconstitutional  law.  Yet  extreme  cau- 
tion is  requisite  in  coming  to  a  conclusion  that  a  law  is  un- 
constitutional. It  is  not  enough  that  a  law  is  unjust  and 
subversive  of  rights,  or  is  contrary  to  the  fundamental  princi- 
ples of  our  government,  or  is  at  war  with  the  spirit  of  the  con- 
stitution. It  must  be  expressly  forbidden,  either  by  positive 
terms,  or  by  fair  implication  from  the  terms  of  the  constitu- 
tion, (o) 

Nor  is  it  the  business  of  the  court  to  inquire  into  the  regu- 
larity of  the  adoption  of  a  constitution  itself  after  it  has  been 

(m)Scofield  «.  Perkerson,  46  Ga.  ((')See   Cooley's  Const.  Lim.  and 

359.  cases  cited  (p.  159,  et  seq.;)  also  see 

(n)U.  S.  «.  Airedondo,  6  Pet.  710,       }  6,  supra,  of  this  work. 


10  CONSTITUTIONAL    LIMITATIONS. 

jicted  upon,  and  the  state  government  is  actually  in  operation 
luider  it,  it  being  remarked  hj  a  court  hereon  that  such  an 
attempt  is  not  only  treating  political  questions  as  judicial,  and 
is  liable  to  destroy  the  state  government,  but  at  the  same 
time  presents  the  singular  sj^ectacle  of  a  court  sitting  as  a 
court  to  declare  that  it  is  not  a  court. (_/?) 

A  part  of  a  statute,  however,  may  be  decided  unconstitu- 
tional, and  the  remainder  sustained,  (r/)  provided  it  is  thus 
separable. 

(j))BritUe  v.  The  Jfeople,  2  Neb.  (j)Myers  «.. People,  67111.  508. 

214. 


HOW    JUBISDICTION    IS    INQUIRED    OF,  41 


CHAPTER  VIII. 

HOW   JURISDICTION    IS   INQUIRED   OF.* 

i  56.  Axioms. 

57.  Collateral  inquiries  as  to  jurisdiction. 

58.  The  United  States  supreme  court  on  reviewinc;  foreign  decisiona. 

59.  Courts  in  sister  states. 

60.  Jurisdiction  as  to  a  pending  case  in  another  court. 

61.  Judgment  of  inferior  courts  on  jurisdictional  facts. 

62.  Courts  bound  to  inquire  as  to  jurisdictional  facts. 

63.  Time  of  objecting. 

64.  How  a  want  of  jurisdiction  may  be  taken  advantage  of. 

65.  Genei'al  observation  as  to  tests  of  jurisdiction. 

§  56.  It  has  been  declared  by  the  highest  tribunal  in  the 
land  that  these  are  judicial  axioms:  (1)  That  in  every  state 
the  court  of  dernier  resort  decides  upon  its  own  jurisdiction; 
and  (2)  that  it  decides  also  upon  the  jurisdiction  of  all  the 
inferior  courts  to  which  its  appellate  power  extends. (a)  Nev- 
ertheless, it  has  been  held  in  New  York  tliat,  where  the  higher 
court  has  not  decided  upon  its  own  jurisdiction,  h  lower  court 
may  inquire  into  it  on  a  reversal  or  affirmance. (/>) 

Prima  facie,  every  court  has  the  power  of  judging  con- 
cerning its  own  jurisdiction  in  cases  where  the  want  of  ju- 
risdiction is  not  apparent  on  the  face  of  the  proceedings. 
But  in  some  states,  at  least  in  South  Carolina,  it  has  been 
held  that  a  party  is  not  compelled  to  submit  the  question  of 
jurisdiction  to  the  decision  of  the  inferior  court,  but  may 
remove  it  at  once  to  the  superior  court  by  ajjplying  for  a 
prohibition,  (c) 

§  57.  As  to  collateral  inquiries,  the  principle  is,  "that  the 
jurisdiction  of  any  court  exercising  authority  over  a  subject 

*For  full  explanation  of  tlic  topic  (r^) Davis  v.  Packard,  s  Pet.  323. 

of  this  chapter,  1  refer  to  my  recent  (i^) People  v.  Clark,  1  Parker  C.  R_ 

work  on  "  lies  Adjudicat'i."  3(!I. 

(c')Slate  «.  Scott,  1  Bailey,  2')6. 


42  HOW    JURISDICTION    IS    INQUIRED    OF. 

may  be  inquired  into  in  every  other  court  wlieii  the  proceed- 
ings of  the  former  are  relied  on  and  brought  before  the  latter 
by  the  party  claiming  the  benefit  of  such  proceedings. "(fZ) 
And  the  inquiry  may  relate  to  jurisdiction  of  either  subject- 
matter  or  parties,  and  the  only  diiference  herein  as  to  courts 
of  superior  and  of  inferior  jurisdiction  is  as  to  the  presump- 
tions of  which  we  have  treated  in  a  previous  chapter,  (e)  And 
where  proceedings  are  found  to  have  been  without  jurisdiction 
it  is  unimportant  how  technically  correct  and  precise  the 
record  may  appear,  the  judgment  is  void  to  every  intent,  and 
must  be  so  declared  by  every  court  in  which  it  is  presented, 
although  on  the  other  hand  no  judgment  is  to  be  impeached 
collaterally,  even  for  the  grossest  irregularities  or  errors, 
where  the  jurisdiction  was  complete. (/V!" 

§  58.  In  an  early  case  the  question  arose  in  the  supreme 
court  of  the  United  States  whether  the  decisions  of  foreign 
courts  were  reviewable  in  American  courts.  It  was  said 
thereon:  "The  court  pronouncing  the  sentence  of  necessity 
decided  in  favor  of  its  own  jurisdiction,  and  if  the  decision  was 
erroneous,  that  error,  it  is  claimed,  ought  to  be  corrected  by 
the  superior  tribunals  of  its  own  country,  not  by  those  of  a 
foreign  country.  This  proposition  certainly  cannot  be  admit- 
ted in  its  full  extent.  A  sentence  professing  on  its  face  to  be 
the  sentence  of  a  judicial  tribunal,  if  rendered  b}"  a  self-con- 
stituted bod}-,  or  by  a  bod}^  not  empowered  by  its  government 
to  take  cognizance  of  the  subject  it  had  decided,  could  have 
no  legal  effect  whatever.  The  power  of  the  court,  then,  is  of 
necessity  examinable  to  a  certain  extent  by  that  tribunal  which 
is  compelled  to  decide  whether  its  sentence  has  changed  the 
right  of  property.  The  power  under  which  it  acts  must  be 
looked  into,  and  its  authority  to  decide  questions  which  it  pro- 
fesses to  decide  must  be  considered.  But  although  the  gen- 
eral power  by  which  a  court  takes  jurisdiction  of  causes  must 

(d)Lessee  of  Hickey  v.  Stewart,  3  St.  498;  Rose  v.  K.  11,  47  la.  422. 

How.  762.  fBut  recitals  of  records  are  often 

(<')Gray   v.  Larrimore,  2   Abbott,  conclusive  as  to  parties  and  .iuris- 

(U.  S.)  548.  dictional  facts.     See  "  Res  Adjudi- 

[J]  Sheldon  v.  Newton,  3  Ohio  cata." 


HOW    JURISDICTION    IS    INQUIRED    OF.  43 

1)6  inspected  in  order  to  determine  whether  it  may  rightfully  do 
what  it  professes  to  do,  it  is  still  a  question  of  serious  difficulty 
whether  the  situation  of  the  particular  thing  on  which  the 
sentence  has  passed  may  be  inquired  into  for  the  purpose  of 
deciding  whether  that  thing  was  in  a  state  which  subjected  it 
to  the  jurisdiction  of  the  court  passing  the  sentence.  For 
example :  in  every  case  of  a  foreign  sentence  condemning  a^ 
vessel  as  a  prize  of  war,  the  authority  of  the  tribunal  to  act 
as  a  prize  court  must  be  examinable.  Is  the  question,  whether 
the  vessel  condemned  was  in  a  situation  to  subject  her  to  the 
jurisdiction  of  that  court,  also  examinable?  This  question, 
in  the  opinion  of  the  court,  must  be  answered  in  the  affirma- 
ative.  Upon  principle  it  would  seem  that  the  operation  of 
every  judgment  must  depend  on  the  power  of  the  court  to 
render  that  judgment,  or,  in  other  words,  on  its  jurisdiction 
over  the  subject-matter  which  it  has  determined.  In  some 
cases  that  jurisdiction  unquestionably  depends  as  well  on  the 
state  of  the  thing  as  on  the  constitution  of  the  court.  If,  by 
any  means  whatever,  a  prize  court  should  be  induced  to  con- 
demn as  prize  of  war  a  vessel  which  was  never  captured,  it 
could  not  be  contended  that  this  condemnation  operated  a 
change  of  propert3^  Upon  j)rinciple,  then,  it  would  seem  that 
to  a  certain  extent  the  capacity  of  the  court  to  act  upon  the 
thing  condemned,  arising  from  its  being  within  or  without 
their  jurisdiction,  as  well  as  the  constitution  of  the  court,  may 
be  considered  by  that  tribunal  which  is  to  decide  on  the  effect 
of  the  sentence. 

"Passing  from  principle  to  authority,  we  find  that  in  the 
courts  of  England,  whose  decisions  are  particularly  mentioned 
because  we  are  best  acquainted  with  them,  and  because,  as 
is  believed,  they  give  to  foreign  sentences  as  full  effect  as  are 
given  to  them  in  any  part  of  the  civilized  world,  the  position 
that  the  sentence  of  a  foreign  court  is  conclusive  with  respect 
to  what  it  professes  to  decide  is  uniformly  qualified  with  the 
limitation  that  it  has,  in  the  given  case,  jurisdiction  of  the 
subject-matter,  "(fir) 

§  59.  On  much  the  same  principle  the  matter  of  the  juris- 

{^)Kose  V.  lliiiiely,  4  Craiich,  2G8. 


44  HOW    JURISDICTION    IS    INQUIRED    OF. 

diction  of  courts  in  another  state  will  be  inquired  into  by 
inspection,  or  on  a  plea.(/t)* 

§  60.  In  no  case,  however,  will  a  court  inquire  into  the 
question  of  jurisdiction  as  to  a  case  pending  and  undeter- 
mined in  a  court  of  general  jurisdiction  legally  competent  to 
determine  its  own  jurisdiction,  and  having  acquired  a  prior 
de  facto  jurisdiction — a  rule  founded  on  comity,  and  necessary 
to  prevent  injurious  collisions. (i) 

§  61.  Where  the  jurisdiction  of  even  an  inferior  court  is 
dependent  on  a  fact  which  that  court  is  required  to  ascertain 
and  settle  by  its  decision,  such  decision  is  held  conclusive; 
and,  furthermore,  it  has  been  claimed  that  this  principle  is  not 
confined  to  determinations  of  a  judicial  character.(/) 

§  62.  Not  only  may  courts  look  into  the  matter  of  juris- 
diction, but  in  every  case  the}'  are  bound  to  inquire  whether 
facts,  as  jiresented  to  them,  give  them  jurisdiction. (A;) 

§  63.  It  is  a  settled  rule  that  an  objection  to  the  jurisdic- 
tion as  to  the  subject-matter  may  be  taken  at  any  time.(Z) 
And  even  for  the  first  time  in  the  appellate  court,  because 
the  objection  lies  at  the  foundation  of  the  whole  case.(m) 
Yet  the  question  of  jurisdiction  cannot  properly  be  made  to 
dej)end  upon  a  subsequent  fact  disclosed  by  the  evidence. (n) 
But  as  to  divorce  cases  the  reverse  has  been  held  in  Illinois,(o) 
and  right!}',  I  judge,  although  it  be  an  exception. 

§  64.  There  are  three  methods  by  which  the  want  of  juris- 
diction may  be  taken  advantage  of :  (1)  by  motion  to  dismiss; 
(2)  by  demurrer;  (3)  by  plea.  And,  where  the  former  is  em- 
ployed, it  is  no  valid  objection  to  the  motion  that  it  was  made 

(/i)Ke]ly     V.    Hoo7ier'9    Ex'rs,   3  (i) Ex  parte  Bu>i\\nel\,  ?>  Ohio,  QOl. 

Yerg.  (Tenn.)  396.  (j)R.  R.  v.  City  of  Ev:insville,  15 

*See  also  my  work  on  "  Kes  Ad-  Ind.  421,  423. 

judicata."  (A')Stamps    ».    Newton,    3    How. 

But  where  a  judgnicnt  or  decree  (Miss.)  34. 

of  a  court  of  general  civil  jurisdic-  (Z)Stearly's  Appeal,  3  Grant,  270. 

tion  is  offered  as  evidence  collater-  (m)Coleman"s  Appeal,  75  Ta.  St. 

all}',  its  validity  cannot  be  ques-  460. 

tionedfor  errors  which  do  not  affect  (/i)Sheldon  «.  Newton,  3  Ohio  St. 

the   jurisdiction.     Hall  «.  Hall.  12  49!). 

W.  Va.  1.  (<>)  Way  v.  Way,  64  111.  410. 


HOW    JURISDICTION    IS    IXQUJRED    OF.  4:5 

by  the  jjarty  who  brought  the  caase  to  the  court. Qj)  And 
such  a  motion  is  never  out  of  time  where  the  want  of  juris- 
diction pertains  to  the  subject-matter. (5)  The  motion  also 
may  be  made  for  the  absence  of  an  allegation  in  the  declara- 
tion which  may  be  amendable  in  the  discretion  of  the  court. (r) 
In  such  case,  of  course,  granting  leave  to  amend  is  equiv- 
alent to  overruling  the  motion  to  dismiss,  (s)  It  is  manifest 
that  such  a  motion  usually  relates  to  a  want  of  jurisdiction 
of  the  subject-matter,(i)  unless,  indeed,  on  a  defective  allega- 
tion as  above  noted. 

Where  a  defect  of  jurisdiction  is  manifest  from  the  plead- 
ings, a  demurrer  is  the  proper  course. (uj 

Where  the  want  is  not  apparent,  it  may  be  set  up  b}'  plea.(i;) 
But  in  regard  to  the  person,  it  must  of  course  be  put  in  as 
a  i^lea  of  abatement,  and  it  is  too  late  to  object  after  pleading 
in  bar  to  the  merits. (»?)  And,  like  other  pleas  in  abate- 
ment, it  must  give  a  better  writ,  and  therefore  give  jurisdic- 
tion to  some  other  court  of  the  state,  although  where  it  ap- 
pears that  neither  the  party  nor  his  property  is  within  the 
jurisdiction  of  the  state,  the  court  will  stay  all  further  pro- 
ceedings at  any  stage. (aO  And,  if  no  court  of  the  nation  has 
jurisdiction,  the  defendant  may  avail  himself  of  the  defence 
under  a  i)leato  the  merits  of  the  action  or  a  plea  in  bar,(?/)  a 
distinct  plea  to  the  jurisdiction  being  only  proper  when  some 
court  in  the  nation  has  jurisdiction  of  the  cauoc,  but  not  the 
court  wherein  the  suit  is  brought.  And  it  has  been  held  in 
Pennsylvania  that  state  courts  having  no  jurisdiction  of  a  con- 
sul, they  will  stop  the  proceedings  at  any  stage,  even  after 
the  general  issue  is  pleaded,  if  it  appears  that  the  defendant 
is  a  consul.  (^) 

But  where  the  want  of  jurisdiction  arises  from  the  fact  tliat 

(p)Wil(liuan  v.  Ilidcr,  2:5  Vt.  176;  (?/)Gnint,  v.  I^avis,  7  3Ioni-.  222. 

Jn  re  Collego  Slrect,  U  11.  I.  472;  (!))Iveiser  «.  Viindcs,  -if.  Ind.  174. 

Graham  v.  liingo,  07  Mo.  324.  (w)Smitli   v.   Elder,  o  .Johns.  113. 

(r/)St()nghtc)ii  «.  Molt,  13  Vt.  181.  (.r) Daniel   v.  Smith,  5  Mass.  8(;2; 

(/•)Waketield  v.  (iandy,  3   Sciam.  Jones  «.  Winchester,  6  N.  11.  491. 
134.  (^)liea  v.  Hayden,  3  Mass.  2ti. 

(.xjShepard  0.  Ogden,  2  Scam.  2.')7.  (2)Manh:irdt     v.     Soderstroni,     1 

(^)Mastin  v.  31arlow,  65  N.  0.  701.  Binn..l42. 


46  HOW    JUEISPICTION    IS    INQUIRED    OF. 

the  defentlants  do  not  reside  in  the  county,  the  only  mode  of 
taking  advantage  of  it  is  by  plea,  since  proceeding  in  the 
cause  waives  the  objection, (a)  except  as  above  stated,  where 
it  is  required  to  allege  the  residence  in  the  declaration,  in 
which  case  the  want  of  the  averment  is  demurrable. 

§  65.  It  is  held  in  Wisconsin  that  a  common  law  certiorari 
in  causes  before  justices  of  the  peace  reaches  questions  of 
jurisdiction  only,  and  not  matters  of  error. (^)  Also,  that  on 
appeal  from  a  justice  of  the  peace  the  appellate  court  acquires 
no  jurisdiction  if  the  justice  had  none.(c)  But  informalities 
in  making  up  a  docket-entry  do  not  dei)rive  the  justice  of 
jurisdiction. (rf)  although  he  may  lose  jurisdiction  by  not 
proceeding  in  a  reasonable  time  to  tax  the  costs  and  perfect 
the  judgment. (f) 

A  voluntary  appearance  in  a  cause  may  confer  jurisdiction, 
although  that  appearance  may  be  avowably  for  only  a  special 
purpose,  in  Iowa,(./')  and  probably  other  states,  by  statute. 
As  to  subject-matter,  however,  a  justice  of  the  peace  and 
all  inferior  courts  can  only  exercise  such  jurisdiction  as  is 
expressly  conferred  by  statute. (</) 

It  has  been  held  in  Illinois  that  where  a  justice  of  the 
peace  exceeds  his  jurisdiction,  and  an  appeal  is  taken  from 
his  decision  to  the  circuit  court,  advantage  may  be  taken  of 
the  want  of  jurisdiction,  even  after  trial  in  the  appellate  court, 
and  on  motion  for  a  new  trial,  since  the  objection  cannot  be 
waived  by  not  urging  it  sooner. (/?)* 

(a)Hughes  v.  Martin,  1  Ark.  463.  *Ia  collateral  proceedings  specific 
(6)VaneIl  v.  Church,  36  Wis.  320;  recitals  are  usually  held  conclusive 
Barnes  v.  Schmitz,  (187S.)  unless  the  record  furnishes  its  own 
(c)Coohan  v.  Bryant,  36  Wis.  612.  refutation — anoflicer's  return  being 
(fZ)Coft'ee  «.  City,  36  Id.  126.  held  to  be  a  part  of  the  record  for 
(e)Klein8tuber  v.  Scbuniaker,  35  this  purpose.  Andrews  v.  Bern- 
Id.  612.  hardi,  87  111.  365  ;  Barnett  v.  Wolf, 
(/)Ilapud  V.  Green,  37  la.  630.  70  111.  76  ;  Searle  e.  Galbraith,  73  111. 
(g)iyi]Urdv.  R.  R.,  58  Mo.  74.  269;  Harris  v.  Lester,  80  111.  30^i ; 
(/ijTaylor  v.  Smith,  64  111.  446.  Woodbury  v.  Maguire,  42  la.  339. 

See  "  Res  Adjudicata." 


SOURCES    OF   JUIUbDlC'UOii    AS    TO    SUBJECTS.  47 


CHAPTER  IX. 

SOURCES    OF    JURISDICTION    AS   TO    SUBJECTS. 

§  66.  Consent  cannot  confer  jurisdiction  of  subject-matter. 

67.  Sources:     (1)  Common  law,  (2)  Constitutions,  (3)  Statutes. 

68.  Organization  of  courts  and  granting  jurisdiction. 

69.  Repealing  statutes. 

70.  Statutory  authorit}^  to  be  strictl}'  pursued. 

71.  Probate  powers  of  common  law  courts  statutory. 

72.  Remarks  on  strict  construction. 

§  66.  In  considering  the  question  whence  jurisdiction  is 
derived  as  to  the  subjects  offered  for  judicial  decision,  we 
may  first  begin  negatively  and  consider  the  principle,  running 
through  all  the  authorities,  that  the  consent  of  parties  can- 
not confer  on  the  courts  power  to  investigate.  We  had 
occasion,  in  the  chapter  on  Constitutional  Limitations,  to 
consider  the  doctrine  as  to  a  submission  of  executive  officers  to 
the  courts  by  waiving  their  constitutional  exemptions.  But 
we  are  now  to  explain  it  in  relation  to  ordinary  judical  pro- 
ceedings between  private  parties. 

Thus,  consent  cannot  give  jurisdiction  in  a  criminal  case, 
where  the  indictment  is  for  a  subject-matter  out  of  the  juris- 
diction, (a.)  not  even  if  the  prisoner  enter  of  record  a  waiver 
of  "all  objections  to  any  irregularity  in  finding  of  indictment, 
and  to  jurisdiction  ;"(^)  or  in  civil  causes  in  courts  of  limited 
jurisdiction,  where  there  is  no  authority  given  by  the  con- 
stitution or  some  law  pursuant  thereto  ;(c)  or  where  the 
action  is  not  transitory  in  its  character,  but  strictly  local, 
and  beyond  the  territorial  jurisdiction  of  the  court, (f/)  as,  for 
instance,  an    action  of   trespass  quarc  clausum  /regit  ;[e)  or 

(a)Fol'ej- 1).  People,  Breese,  . 58.  (rf)McHenry  v.  Wallen,  2  Yerg) 

(J)State  V.  Bonney,  34  Me.  225.  (Tenn.)  444. 

((;)nurd  V.  Tombes,  7  How.  (Miss.  (^)Cliapman  v.  Morgan,  2  Greene, 

231.  (la.)  375. 


48  SOURCES    OF    JURISDICTION    AS    TO    SUBJECTS. 

where  the  jurisdiction  is  only  appellate,  and  an  attempt  is 
made  to  give  original  jurisdiction, (/) — although,  where  the 
appellate  court  has  also  original  jurisdiction  of  the  subject- 
matter,  consent  may  waive  iiTegularities  of  the  appeal,  or 
even  defects  in  the  jurisdiction  below,  the  trial  being  de 
n()V();([/)  and,  indeed,  although  no  appeal  would  lie,  as,  for  ex- 
ample, directly  from  the  verdict  of  a  jury,  whereon  no  judg- 
ment had  been  entered  ;(/j) — or  where  jurisdiction  over  the 
person  is  positively  localized  by  statute  ;(i)  or  where  the 
law  imperatively  requires  twelve  jurors,  and  by  consent  the 
case  is  tried  by  six  only;(j)  or  where  suit  is  brought  for  an 
amount  beyond  jurisdiction  by  an  administratqr  before  a  jus- 
tice of  the  peace  ;(/c)  or  where  suit  is  brought  against  sureties 
on  an  administrator's  bond  in  the  wrong  court  ;(Z)  or  where 
suit  is  brought  against  school  commissioners  for  moneys  in 
their  hands  in  a  court  not  invested  with  jurisdiction  :(»i)  or 
on  a  motion  by  a  sheriff  against  his  dej)uties;(«)  or  an  ap- 
pellate jurisdiction  not  possessed. (o) 

Nor  is  express  consent  any  more  effectual  than  an  implied 
consent  or  implied  waiver. (/>)  Neither  is  the  principle  dif- 
ferent as  to  an  agreed  case  in  which,  usually,  to  guard  against 
imposition,  an  affidavit  is  required  that  the  controversy  is 
real,  and  the  proceedings  in  good  faith,  to  determine  the  legal 
rights  of  the  parties. (^7)* 

(/)Gmn  D.  Rogers,   4  Gil.    (111.)  (o)Winn  ».  Freele,  19  Ala.  172. 

134;    Ames   v.    Bowland,   1   Minn.  (^)Wyatt  «.  Judge,  7  Port.  (Ala.) 

3(i8  ;  Dicks  v.  Hatch,  10  la.  384.  40. 

((/jRandolph  County  v.  Ralls,  18  ((/)Joucs  v.  Hoffman,  18  B.  Mon. 

111.  30.  656. 

(A)Danforth  v.  Thompson,  34  la.  *And  the  court  is  to  keep  in  view 

243.  sua  sponie  the  boundary  of  its  juris- 

(/)Bank  «.  Giljson,  11  Ga.  4.55.  diction.   Phillips  v.  Welsh,  11  Nev. 

(j)Falkenburgh  v.  Cramer,  Coxe  188.       A     consenting     corporation 

(N.  J.)  31.  stands  as  an  individual  powerless  to 

(/t)Leigh  V.  Mason,  1  Scam.  (111.)  confer    unauthorized    jurisdiction. 

249.  Callahan   v.  New  York,  66  N".  Y. 

(/)I)odson    1).    Scroggs,    47    Mo.  656.       The     principle    applies    to 

286.  amount  as  well  as  to  the  nature  of 

(m)Jeflfries  v.  Hardin,  20  Ala.  387.  the  controversy.    Tippack  v.  Briant, 

(/i)Lindsey  «.  McClelland,  1  Bibb,  63  Mo.  580.     The  law  must  deter- 

(Ky.)  262.  mine  what  subjects  a  court  may  act 


SOURCES    OF    JURISDICTION    AS    TO    SUBJECTS.  49 

The  priuciiile,  however,  that  consent  cannot  give  juvisdic- 
tioii  does  not  prevent  parties,  where  the  court  has  jurisdidion 
of  tlie  suhjoct-matter,  from  admitting,  by  consent,  irregular 
proof  of  such  facts  as  show  that  the  particular  case  is  prop- 
erly before  it;(r)  that  is  to  say,  irregularities  may  be  waived. 
But  even  this  is  subject  to  some  restrictions,  as  where  a  process 
is  imperatively  enjoined  by  a  statute.  Concerning  this,  the 
supreme  court  of  the  state  of  New  York  have  said:  "A  num- 
ber of  cases  have  been  cited  to  show  that  where  an  informal 
process  is  issued,  a  defendant  waives  the  informality  by 
appearing  and  pleading  over.  In  those  cases  the  practice  of 
the  court  or  statute  prescribed  certain  forms,  but  did  not 
declare  that  the  omission  of  them  should  prevent  the  court 
from  having  jurisdiction.  In  such  case  the  court  might  well 
hold  that  the  objection  to  the  want  of  form  in  process  was 
waived  by  a  plea  which  admitted  that  the  part}'  was  properl}'' 
in  court.  But  here  the  statute  is  imperative.  It  expressly 
declares  that  'if  the  defendant  be  proceeded  against  otherwise 
the  justice  shall  have  no  jurisdiction  of  the  cause.'  It  does 
not  make  any  exception  to  this — as  that  the  justice  shall  have 
no  jurisdiction  unless  the  defendant  j^lead  over  or  waive  the 
objection — but  it  positively  precludes  the  justice  from  acquir- 
ing jurisdiction  if  the  defendant  be  i^roceeded  against  other- 
wise than  as  the  law  prescribes.  The  legislature  no  doubt 
had  a  motive  in  this.  They  meant  to  protect  the  non-resi- 
dent defendant  from  being  sued  out  of  his  own  county,  except 
in  the  prescribed  manner.  They  may  have  apprehended  that, 
if  they  only  forbade  it,  plaintiffs  and  inferior  courts  would 
disregard  the  law,  trusting  that  the  defendant,  by  his  igno- 
rance of  his  rights,  might  so  act  as  to  waive  them.  And  to 
prevent  any  chance  of  this  the  law  may  have  been  made  as 
it  is  expressly  that  the  justice  shall  not  have  jurisdiction  of 
the  cause  if  the  defendant  be  not  proceeded  against  as  the 

upon.     Brown   «.   Woody,   64  Mo.  (Nazro  «.  Cragin,  3  Dillon,  474,)  nor 

f)50.     And   pleading   to  the  merits  a    failure   to   object    at   the   time, 

does  not  waive  a  question  of  juris-  (Mathie  v.  Mcintosh,  40  Wis.  120.) 
diction   as   to   the    subject-matter,  (/•)Hills  v.  Mills,  13  Wis.  628. 

v.l— 4 


50  SOUKCES    OF    JURISDICTION    AS    TO    SUBJECTS. 

law  prescribes,  thus  stripping  the  justice  of  all  official  author- 
ity, and  giving  him  no  more  power  to  accept  a  waiver  and 
acquire  jurisdiction  than  a  private  individual  would  have. 
As  Chief  Justice  Oakley  says,  in  an  analogous  case,  (Cornell 
x.SinWi,  2  Sand.  291,)  'the  imperative  dii-ection  to  dismiss 
the  suit  precludes  any  waiver  from  being  inferred  by  plead- 
ing over  to  the  action  and  going  to  trial.'  This  statute  ia 
stronger  than  a  direction  to  a  justice  in  certain  events  to  dis- 
miss a  suit,  as  that  would  almost  imply  that  he  once  had 
control  over  it.  But  here  the  beginning  of  jurisdiction  is 
prevented  by  the  words  of  the  act.  The  court  below  say  that 
the  defendant,  by  pleading  over,  must  have  agreed  to  enter 
an  action  in  the  court  without  process.  This  would  be  to 
infer  an  agreement  contrary  to  all  the  facts  of  the  case  brought 
home  to  the  knowledge  of  the  court  by  the  record.  The 
return  shows  that  the  defendant  was  brought  before  the  court 
by  this  illegal  process,  and  that  it  was  under  that  jDrocess 
that  he  asked  for  an  adjournment,  and  obtained  it,  and  asked 
that  he  might  send  for  counsel,  and  got  ten  minutes  to  do  it 
in,  and  under  the  force  of  that  process  he  pleaded ;  and  by 
virtue  of  that  process,  and  not  of  any  agreement  to  enter  the 
action  without  process,  the  plaintiff  took  judgment  against 
the  defendant,  after  waiting  more  than  an  hour  for  his  return. 
The  process  is  returned  as  the  foundation  of  the  action,  and 
no  agreement  to  enter  the  action  without  process  is  pretended 
in  the  return.  To  infer  such  an  agreement,  under  these  cir- 
cumstances, is  to  do  violence  to  one's  common  sense.  The 
suit  being  commenced  by  process,  an  agreement  to  enter  the 
action  without  process  could  hardly  be  established  without 
an  express  abandonment  of  the  process,  or  an  express  agree- 
ment to  enter  or  commence  the  action  anew  without  pro- 
cess, "(s) 

I  doubt  whether  this  decision  can  ever  be  drawn  into  prec- 
■edent,  or  the  construction  of  the  prohibitory  clause  of  the 
statute  referred  to  therein  would  be  assented  to  generally.  It 
would,  I  think,  be  held  not  imperative,  but  directory  merely, 
although,  indeed,  strongly  so.  It  was  meant,  as  the  court 
{«)Koliiuson  V.  West,  11  Barb.  310. 


SOURCES    OF    .TUmSDICTION    AS    TO    SUBJECTS.  51 

say,  as  a  protection  of  the  defeDdiint.  It  is,  therefore,  a 
privilege,  and  any  private  privilege  may  be  waived,  and  any 
mere  personal  protection  may  be  renounced.  Besides,  the 
court  seem  to  hold  that  the  defendant  might  be  ''proceeded 
against  otherwise,"  namely,  by  an  express  agreement  to  com- 
mence the  action  without  process.  I  judge  that  always, 
where  process  may  be  dispensed  with  altogtlier,  any  irregu- 
larity therein  may  be  waived.  If  one  may  go  to  trial  without 
process,  he  may  surely  go  to  trial  with  a  defective  process. 
It  is  different  where,  as  a  matter  of  public  polic}-,  parties  are 
prohibited  from  waiving  any  right,  as  we  have  seen  in  the 
chapter  on  Constitutional  Limitations  a  public  officer  holding 
a  public  trust  is.  Thus,  also,  in  Louisiana,  a  defendant  is 
expressly  jn-ohibited  by  statute  from  electing  any  other  than 
his  own  domicile  or  residence  as  the  venue  of  a  suit  at  law.(^) 
Anj'thing  short  of  this,  I  aj^prehend,  is  to  be  construed  as 
directory,  and  as  conferring  an  inviolable  privilege  on  a  party, 
which,  being  a  privilege,  may  be  waived,  as  we  shall  see  in  a 
subsequent  chapter. 

Where  a  court  has  once  had  jurisdiction,  although  the 
authority  has  been  executed  so  that  without  consent  the  court 
could  not  open  or  change  the  former  judgment  or  decree,  the 
jurisdiction  may  be  restored  by  consent ;  the  maxim  "consent 
takes  away  error"  herein  applying. (»). 

And  parties  may  consent  to  submit  matters  in  dispute,  of 
whatever  nature,  to  arbitrators  chosen  by  themselves.  In  a 
certain  case  it  was  claimed  that  the  "parties,  by  an  agreement 
of  their  own,  created  a  tribunal  to  try  their  cause  which  the 
law  does  not  recognize,  and  wdiose  proceedings  cannot  lay  the 
foundation  of  any  judgment  of  the  court."  But  the  appellate 
court  replied  that  "the  princij^le  supposed  to  be  involved  in 
this  objection  is  undoubtedly  correct,  and  in  its  general  appli- 
cation of  unquestionable  importance ;  for  no  one  pretends 
that  parties  of  themselves  can  create  courts  of  justice,  or 
judges,  or  other  tribunals,  or  clothe  them  with  legislative 
authority ;  these  can  be  created  only  by  the  legislature.    Arbi- 

(OState  «.   Fosdick,  21  Li.   An.  (M)Biown  «.  Heirs,  Hardin,  (Ky.) 

25b.  449. 


52  SOURCES    OF    JURISDICTION    AS    TO    SUBJECTS. 

tratoi's  may  be  chosen  by  the  parties,  and  be  clothed  with 
such  power  and  authority  as  they  agree  to,  and  their  doings 
will,  in  that  case,  be  as  final  and  conclusive  as  the  judgment 
of  a  court  would  be ;  not,  however,  as  the  doings  of  a  court 
constituting  an  integral  part  of  the  judiciai-y  of  the  state,  but 
the  court  of  the  parties,  "(r)  However,  arbitration  may  become 
statutory,  and  courts  may  be  authorized  to  refer  causes  to  it 
by  consent,  and  register  the  award  as  a  judgment,  in  which 
case,  of  course,  the  ordinary  jurisdictional  principles  would 
apply,  since  such  submission  could  only  be  of  matters  within 
jurisdiction.  The  awards  in  private  arbitration  are  rather 
considered  contracts  than  judgments,  and  hence  the  submis- 
sion may  be  withdrawn  by  either  part}'  before  it  is  completed, 
by  a  formal  revocation. 

§  67.  We  have  already  remarked,  incidentally,  that  supe- 
rior courts  proceed  according  to  the  course  of  the  common 
law',  and  we  may,  in  general  terms,  speak  of  the  sources  of 
our  jurisdiction  as  three  in  number:  (1)  Common  law;  (2) 
Constitutions ;  (3)  Statutorj^  law. 

§  68.  But  as  it  is  evident  that  the  existence  and  organiza- 
tion of  courts  is  the  fundamental  principle  underlying  the 
exercise  of  judicial  jurisdiction  and  action,  it  will  be  appro- 
priate to  consider  this  first  in  order. 

It  is  competent  for  a  legislature  to  establish  new  tribunals 
for  the  trial  of  offences  previously  committed.  («')  A  law  for 
this  purpose  is  not  an  ex  post  facto  law  within  the  meaning  of 
the  constitution,  which  consists  either  in  defining  that  to  be 
an  offence  which  was  not  an  offence  before,  and  punishing  it, 
though  committed  before  the  enactment  of  the  law,  or  else 
increasing  the  penalty  attached  to  an  offence,  and  inflictmg 
the  increased  penalty  upon  one  whose  act  was  previously 
committed.  Again,  a  legislature  may  create  a  new  offence, 
and  designate  a  particular  tribunal  to  take  cognizance  of  it, 
and  in  such  case  (as  well  as  others)  the  statutory  provisions 
must  be  strictly  followed,  and  no  court  exce^Dt  the  one  desig- 
nated can  take  jurisdiction  of  the  offence  provided  against. (a-) 

(f))Andrewse.  VVlieaton,23  Conn.115.       (.t).Vldrich  v.  Hawkins,  6  Blackf. 
(wJState  «.  bliumpert,  1  S.  C.  86.        126. 


SOURCES    OF    JURISDICTION    AS    TO    SUBJECTS.  53 

Where  an  offence  is  committed  within  a  particular  district 
or  county  to  which  venue  is  confined  as  to  the  court  tlierein, 
and  before  a  prosecution  is  begun  the  county  is  divided,  action 
may  be  brought  within  the  limits  of  the  new  district  or  county 
if  the  locus  in  quo  is  embraced  within  its  limits,  but  the  sjjecial 
fact  of  venue  must  be  alleged  and  shown. (?/) 

And  the  jurisdiction  of  courts  already  established  may  be 
enlarged  ;  and  even  where  a  constitution  provided  that  certain 
county  courts  should  exercise  "their  present  jurisdiction"  un- 
til susj^ended  in  a  manner  prescribed,  this  was  held  to  mean 
only  a  limitation  on  the  power  to  change  from  county  to  civil 
or  criminal  business,  and  not  a  prohibition  of  additional  laws 
regulating  such  courts,  or  enlarging  their  powers  as  to  county 
business,(^)  the  word  "present"  being  regarded  evidently  as 
not  implying  degree,  but  quality  of  jurisdiction.  An  enlarge- 
ment of  equitable  jurisdiction  as  to  state  courts  may  be  availed 
of  by  the  United  States  circuit  courts. (a)  But  the  state  courts 
can  derive  power  only  from  state  laws,  and  cannot  execute  a 
penalty  arising  under  a  United  States  statute  or  the  statutes 
of  another  state. (&)  It  is  held  essential  to  a  grant  of  juris- 
diction in  special  cases,  under  a  constitutional  provision  con- 
ferring upon  a  class  of  courts  original  jurisdiction  of  "all 
such  special  cases  and  pi-oceedings  as  are  not  provided  for," 
that  it  be  granted  to  another  tribunal  in  "providing  for"  the 
special  cases,  and  not  to  a  judge  at  chambers.  In  a  case 
bringing  up  this  matter  the  court  say:  "It  is  beyond  ques- 
tion that  the  county  judge  is  not  the  county  court ;  and 
although  the  legislature  may  authorize  the  judges  of  the  sev- 
eral courts  to  perform  certain  duties  at  chambers  in  respect  to 
proceedings  in  a  cause,  yet  some  court  has  jurisdiction  of  the 
cause ;  and  the  judge  at  chambers,  whether  of  the  same  or 
another  court,  acts  as  a  commissioner,  or  in  some  other  capac- 
ity, merely  in  aid  of  and  subordinate  to  the  court  having 
jurisdiction  of  the  cause.  It  being,  we  think,  beyond  dispute 
that  a  county  judge  is  not  the  county  court,  if  jurisdiction  of 

0/)State  V.  .lackson,  89  Me.  294.  (ajBroderick'.s  Will,  21  AVali.  r,04. 

(j)Broa(hvoIl  v.    People,   etc,  76  (i)  Tele.  Co.  «.  Nat.  Bank,  74  111. 

111.  554.  217. 


54  sorRCES  OF  juiusdictiox  as  to  suejects. 

sijeeial  cases  could  be  conferred  upon  the  county  judge,  it  is 
equally  competent  to  the  legislature  to  confer  it  upon  the 
county  clerk,  recorder  or  sheriff,  or  to  create  a  new  tribunal 
for  the  exercise  of  such  jurisdiction,  "(c) 

It  is  evident,  too,  that  new  courts  may  be  endowed  with 
exclusive  jurisdiction  in  definite  classes  of  cases,  and  that 
the  words  "until  otherwise  provided,"  in  a  constitution,  may, 
with  entire  grammatical  j^ropriety,  be  taken  to  qualify  whatever 
succeeds  them  in  the  sentence,  and  the  whole  be  interpreted 
to  mean  that  the  determination  in  the  constitution,  both  of 
the  number  of  courts  and  of  their  respective  jurisdictions,  is 
provisional,  and  is  to  last  until  otherwise  provided,  and  that 
when  the  legislature  shall  choose  to  act,  the  iproxisional  regime 
shall  cease  to  the  extent  indicated  by  the  law-maker.  (cZ) 

But  where  the  right  of  trial  by  jurv  attaches  to  a  particu- 
lar kind  of  cases  by  the  constitution,  it  is  not  competent  for 
the  legislature  to  add  to  a  court  having  no  power  to  empanel 
a  jury  the  jurisdiction  of  that  kind  of  eases,  without  secur- 
ing, either  by  special  or  general  law,  the  right  of  trial  b}^ 

JiiiT-(^) 

On  the  other  hand  it  has  been  held  that  a  legislature  can- 
not, under  a  constitution  recognizing  the  distinction  between 
law  and  equity  by  the  phrase  "judicial  power  as  to  matters 
of  law  and  equity,"  compel  a  court  of  equity  to  refer  all  mat- 
ters of  fact  to  a  jurj^,  any  more  than  a  court  of  law  to  refer 
all  questions  of  law  to  a  jury — in  other  words,  that  judicial 
power  cannot  be  taken  from  a  court  and  conferred  ujjon  a 
jury.  The  power  to  refer  to  a  jury  is  matter  of  discretion 
with  the  chancellor  at  common  law,  and  he  may,  after  taking 
a  verdict,  disregard  it;  and,  where  a  constitution  does  not 
change  this,  a  legislature  cannot. (/)  And  this  seems  to  be 
placed  on  the  principle  that  a  legislature  cannot  essentially 
alter  or  abolish  constitutional  courts — this  only  being  pos- 
sible by  a  modification  of  the  constitution  itself — although 
it  can,  of  course,  enlarge  the  jurisdiction  thereof;  that  is,  by 

(c)Spencer  Creek   Water   Co.   o.  (c)Tliomas  «.  Bibb,  44  Ala.  723. 

Vallejo,  48  Cal.  73.  (/)Callahan  v.  Judd,  23  Wis.  34S 

(d)State  ftf  rel.  v.  Judge,  22  La.  An.  567-S. 


SOURCES    OF    JURISDICTION    AS    TO    SUBJECTS.  55 

annexing  statutory  jurisdiction  to  the  constitutional. (^y)  Tlie 
essential  ^distinction  between  constitutional  and  statutory 
courts  is,  that  the  former  are  not  subject  to  the  will  of  the 
legislature,  so  far  as  their  constitutional  jurisdiction  extends, 
whereas  the  latter  may  be  restricted  or  abolished,  as  well  as 
created  and  enlarged,  at  pleasure, (/i)  and  may  be  abolished, 
even  where  the  constitution  makes  provision  for  them,  if  the 
creation  is  left  to  the  discretion  of  the  legislature.  And  even 
where  a  court  may  be  by  statute  endowed  with  large  and  gen- 
eral powers  as  to  law  and  equity,  yet  as  the  statute  made  it, 
a  repeal  of  the  statute  may  destroy  it.(i) 

So  a  legislature  may  abolish  the  writ  of  ne  exeat. (J)  And 
in  no  case  is  a  legislative  grant  to  be  reviewed  unless  directly 
unconstitutional,  [k) 

In  all  cases,  whether  with  a  superior  or  inferior  court,  a 
purely  statutory  authority  must  be  pursued, (/)  and  it  cannot 
be  extended  by  implication. (wi)  But  herein  there  seems  to  be 
a  distinction,  as  to  matters  of  a  penal  nature,  between  supe- 
rior and  inferior  courts.  The  supreme  court  of  Illinois  quote 
this  rule  from  Espinasse  on  Penal  Statutes:  "With  respect, 
however,  to  statutes  giving  jurisdiction,  a  difference  must  be 
observed  as  to  the  superior  and  inferior  courts.  The  courts 
above  may  have  jurisdiction  by  implication,  as  in  the  case  of 
penal  statutes  mentioned  before,  such  as  Rex  v.  Mallard,  ante, 
folio  9,  j)rohibiting  any  mat.er  of  public  concern  under  a 
penalty,  but  without  appropriating  it,  and  which  is  a  debt 
due  to  the  person,  and  recoverable  in  the  court  of  exchequer. 
That  might  be  sued  for  in  the  courts  above,  though  they  are 
not  named,  but  no  inferior  court  or  jurisdiction  can  have 
cognizance  of  any  penalty  recoverable  under  a  penal  statute 

(.9)II:uTis  e,   Ex'rs,  21  IST.  J.  Eq.  (j)Harker's  Case,  49  Cal.  46.5. 

426.430;  Supervisors*;.  Arrighi,.54  (A-)Stondinger  v.  Newark,  28  N. 

Miss.  668  ;  Heath  v.  Kent,  37 Mich.  J.  Eq.  187. 

373  ;  People  v.  Hurst,  41  Mich.  328.  (^)See  1  Smith's  Leading  Cases, 

(//jState  V.  Smitli,  65  X.  C.  370;  (6   American   Ed.)  1024,  101],   and 
Bank  V.  Duncan,  52  Miss.  740;  Mar-  ca.ses  there  cited;  K.  li.  v.  Camp- 
tin  »).  Harvey,  54  Miss.  685  ;  Keal  «.  bell,  62  Mo.  585. 
Juagc,  36  Mich.  332.  (/«)Buck  v.  Dowley,  16  Gray,  558; 

(jjFcrkins  v.  Corbin,  45  Ala.  111).  Solon  v.  State,  5  Tex.  App.  301. 


56  SOURCES    OF    JURISDICTION    AS    TO    SUBJECTS. 

by  implication.  The}'  must  be  expressly  mentioned  in  the 
statutes  themselves,  and  cognizance  given  to  them  in  express 
terms. "(«) 

It  sometimes  becomes  a  matter  of  importance  to  determine 
when  the  provisions  of  a  statute  are  mandatory,  and  when 
directory.  On  this,  the  supreme  court  of  Pennsylvania  re- 
mark :  "It  would  not,  perhaps,  be  easy  to  lay  down  any  gen- 
eral rule  as  to  when  the  provisions  of  a  statute  are  merely 
directory,  and  when  mandatory  or  imperative.  Where  the 
words  are  affirmative,  and  relate  to  the  manner  in  which 
power  or  jurisdiction  vested  in  a  public  body  is  to  be  exer- 
cised, and  not  to  the  limits  of  the  power  or  jurisdiction  itself, 
they  may  be,  and  often  have  been,  construed  to  be  directory  ; 
but  negative  words,  which  go  to  the  power  or  jurisdiction 
itself,  have  never,  that  I  am  aware  of,  been  brought  within 
that  category.  'A  clause  is  directory,'  says  Taunton,  J., 
'when  the  provisions  contain  mere  matter  of  direction  and 
no  more,  but  not  so  when  they  are  followed  by  words  of  posi- 
tive prohibition.'  "(o)  But  even  under  this  definition  there 
is  room  for  inquiry  as  to  what  are  words  of  positive  pro- 
hibition. 

§  69.  As  to  the  effect  upon  pending  cases  of  a  repeal  of 
the  statute  by  which  a  court  was  established,  and  from  which, 
therefore,  it  derived  authority,  of  course,  in  ordinary  cases, 
there  is  usuall}^  a  provision  for  their  transfer  to  another 
tribunal,  which  thereb}'  is  invested  with  jurisdiction  by  the 
transfer;  when  immediately  full  jurisdiction  attaches  in  the 
new  forum,  (jj)  And  the  cause  should  be  transferred  without 
motion  of  parties. (^)  But  where  such  a  repeal  occurs,  and 
there  is  a  mandamus  pending  against  the  judges  of  the  court 
abolished,  the  suit  cannot  be  renewed  against  the  successors, 
and  it  of  course  abates,  as  the  judges  themselves  lose  and  do 
not  transmit  their  official  character.  Thus,  in  North  Caro- 
lina, while  a  mandamus  suit  was  pending  against  the  justices 
of  a  court,  the  court  was  abolished  by  the  adoption  of  a  new 

(«)B()wc'rs  V.  Groen,  1  Scam.  44.  (p)Kruse».  Wilson,  79  HI.  233. 

(w)Bl:i.leii  w.  Philack-lphia,  60  Pa.  (^)Kiiox  v.  Gurnett,  2S  La.  An. 

St.  4(ilJ.  6U1. 


SOUr.CES    OF    JURISDICTIOX    AS    TO    SUBJECTS.  O  ( 

state  constitution,  and  the  proceedings  were  sought  to  be 
revived  against  the  county  commissioners,  on  whom  devolved 
the  authority  lately  held  by  the  abulished  court.  On  this,  the 
supreme  court  held  that  "the  order  that  notice  issue  to  the 
commissioners  of  the  county  of  Cleveland,  to  show  cause  vvhy 
they  should  not  be  made  parties  to  a  proceeding  by  writ  of 
mandamus  heretofore  directed  to  the  justices  of  the  county, 
is  based  on  two  mistaken  ideas  :  the  one,  that  the  writ  of  man- 
damus may  be  revived  like  an  ordinary  action — no  precedent 
can  be  cited  to  support  it;  the  other,  that  the  commissioners 
represent  the  justices  of  the  county,  as  an  executor  or  admin- 
istrator represents  his  testator  or  intestate.  It  is  true  the 
county  court  is  abolished  by  the  constitution,  and  may  be  said 
to  be  '  civilly  dead ; '  but  the  commissioners  are  not  its  repre- 
sentatives. The  one  corporation  simply  succeeds  and  takes 
the  place  of  the  other  in  respect  to  certain  of  its  functions. 
The  county  court  exercised  both  judicial  and  administrative 
powers.  The  former  have  devolved  upon  the  superior  courts, 
the  judges  of  jDrobate,  and  the  justices  of  the  peace;  the  lat- 
ter devolved  upon  the  county  commissioners,  to  whom  county 
affairs,  taxes,  bridges,  roads,  poor-houses,  and  the  like,  are 
entrusted.  80  the  commissioners  are,  in  respect  to  adminis- 
tration matters,  the  successors,  not  the  representatives, 
of  the  county  court.  It  follows,  that  proceedings  against 
the  justices  of  the  county  court  cannot  be  revived,  either  by 
motion  or  scire  facias,  against  the  commissioners  of  the 
county,  so  as  to  bind  them  by  the  proceeding,  answer,  etc., 
had  under  a  writ  of  mandaiiiKs.  The  instance  of  the  incum- 
bent of  a  benefice,  a  corporation  sole,  furnishes  an  analogy. 
Proceedings  against  a  deceased  incumbent,  although  it  con- 
cerns the  church  property,  cannot  be  revived  against  his 
successor;  it  must  be  by  original  bill  in  the  nature  of  a  supple- 
mental bill.  3  Dan.  Chan.  13.  If  a  writ  of  mandamus  can 
be  revived  at  all,  which  I  very  much  doubt,  it  cannot  be  by 
bill  of  revivor  or  motion  to  revive,  but  it  must  be  by  some 
original  process  which  my  researches  have  not  enabled  me  to 
find.      We  concur  in  opinion  with  his  honor:   'A  suit  against 


58  SOURCES    OF    JURISDICTION    AS    TO    SUBJECTS. 

the    justices   cannot    be  renewed    against    the    commission- 
ers. ••\/-) 

§  To.  The  rule  that  statutory  authority  is  to  be  strictly 
pursued,  is  applicable  as  well  to  superior  courts  as  to  infe- 
rior; and  where  an  act  of  congress  gave  jurisdiction  to  a  dis- 
trict court  of  the  United  States  to  adjudicate  on  the  title  to 
particular  land,  it  was  held  that  it  did  not  give  authority  to 
adjudicate  similar  claims  to  other  lands. (.sj  And  so  it  is  usu- 
ally held  that  all  exceptional  modes  of  obtaining  jurisdiction 
over  natural  or  artificial  persons  must  be  strictly  conformed 
to  the  statute  prescribing  them,  as,  for  example,  in  regard  to 
non-residents. (^)  All  special  statutory  powers  are  strictly 
held,  even  as  to  contempts, (m)  Nor  does  an  enlarged  author- 
ity extend  to  pending  suits,  at  least  by  implication,  although 
I  suppose  it  is  comijetent  for  the  legislature  to  so  provide,  ex- 
pressly, that  pending  suits  should  be  subject  to  the  enlarged 
power.  And  so  a  plaintiff  cannot  avail  himself  of  a  distinct 
head  of  equity  jurisdiction  which  the  court-  did  not  have  at 
the  commencement  of  the  suit;(i;)  as,  for  example,  if,  when  a 
suit  is  entered,  a  court  has  limited  equity  powers,  but  during 
pendency  general  equitable  jurisdiction  is  conferred  on  it.{w) 
And,  moreover,  although  courts  having  full  equity  jurisdiction 
may  sometimes  treat  a  refusal  to  perform  a  parol  contract 
partly  performed  as  a  constructive  fraud,  this  is  not  to  be 
done  by  a  court  possessing  under  a  statute  merelj^  equity 
jurisdiction  "in  all  cases  of  fraud;"'  because  the  rule  of  strict 
construction  prevails,  and  constructive  frauds  are  therefore 
not  included  in  the  phrase  "all  cases  of  fraud. "(,r)  And  so 
it  is  held  that  under  a  statutory  authorit}"  to  determine  in 
equity  "all  suits  and  matters  concerning  waste,  where  there 
is  not  an  adequate  remedy  at  law,"  the  authority  extends, 

(r)Carson   v.    Commissioners,    64  {?<).Johasoii  ».  Voa  Kettler,  84  111. 

N.  C.  566.  316. 

(»)Ural)arger  ».  Cliaboya,  49  Cal.  (»)Sauborn  v.   Sanborn,    7   Gray, 

625.  146. 

(OIns.    Co.   V.    Owen,   30    Mich.  (?f)Buckley  v.  Dowley,  16  Gray, 

441-2;  Haywood  e.  Collins,  60  111.  557. 

333.  (.cjibid,  558. 


SOURCES    OF   JURISDICTION   AS   TO    SUBJECTS.  59 

not  to  such  trespasses  as  courts  with  full  chancery  powers 
will  enjoin,  but  only  to  cases  of  technical  waste. (?/)  And  so^ 
where  inferior  courts  were  authorized  by  law  to  establish 
small-pox  hospitals,  it  was  held  this  did  not  grant  the  right 
by  implication  to  impress  the  private  property  of  citizens  for 
that  purjiose.f^). 

§  71.  The  authority  of  common  law  courts  to  entertain 
suits  for  the  recovery  of  distributive  or  residuary  shares  of 
personal  estates  from  administrators,  arises  solely  by  statute, 
and  must  be  strictly  pursued,  (a) 

§  72.  In  general,  a  strict  construction  of  statutes  is  best, 
at  any  rate.  When  implications  are  admitted,  beyond  the 
limits  of  the  most  rigid  necessity,  it  is  very  easy  to  drift 
unconsciously  away  from  the  meaning  of  the  law-giving 
power  altogether,  and  establish  what  was  never  intended,  or 
even  thought  of.  The  supreme  court  of  Massachusetts  say : 
"Equitable  constructions  according  to  what  may  be  deemed 
the  spirit  of  a  statute,  though  the}'  may  be  tolerated  in  rem- 
edial and  perhaps  some  other  statutes,  should  always  be 
resorted  to  with  great  caution,  and  never  extended  to  penal 
statutes  or  mere  arbitrary  regulations  of  matters  of  public 
policy.  The  power  of  extending  the  meaning  of  a  statute 
beyond  its  words,  and  deciding  by  the  equity  and  not  the  lan- 
guage, approaches  so  near  the  power  of  legislation,  that  the 
wise  judiciary  will  exercise  it  with  reluctance  and  only  in 
extraordinary  cases. "(/j)  Judge  Hebard,  in  a  Vermont  case, 
very  pointedly  says :  "I  am  not  very  well  satisfied  with  the 
summary  mode  of  getting  rid  of  a  statutory  provision  by 
calling  it  directory.  If  one  positive  requirement  and  provis- 
ion of  a  statute  may  be  avoided  in  that  way,  we  see  no 
reason  why  another  may  not."(6')  I  suppose  the  true  prin- 
ciple of  interpretation  is  to  make  no  changes  in  the  literal 

(//)Attaquin     «.     Fish,     5     Met.  (a)Duca8se  v.  Richard,  Anthon's- 

(Mass.)  150.  K  P.  (N.  Y.)  192. 

(a)Markham    «.    Powell,   33   Ga.  (6)Monson  v.   Chester,  22  Pick. 

611.  387. 

(c)Briggs  V.  Georgia,  15  Vt.  72. 


60  SOURCES    OF    JURISDICTION    AS.  TO    SUBJECTS. 

import  of  statutory  language,  further  than  this  is  necessarily 
modified  by  settled  legal  principles  and  rules.  So  far  it  is 
needful,  in  order  to  have  harmony  and  give  all  active  statutes 
a  co-ordinate  operation. 

The  question  as  to  how  jurisdiction  may  be  ousted  or  defeated 
might  appropriately  be  considered  here,  as  germane  to  the 
topics  of  this  chapter.  But,  as  the  chapter  has  become  quite 
extended,  we  will  assign  this  inquiry  to  a  separate  chapter 
immediately  succeeding. 


DEFEAT    OF    JURISDICTION.  61 


CHAPTER  X. 

DEFEAT   OF   JURISDICTION. 

i  73.  Jurisdiction  of  superior  courts  only  taken  away  expressly  or  by 
necessarj'  implications. 

74.  Creating  new  courts  with  exclusive  jurisdiction. 

75.  Repeal  of  criminal  law. 

76.  Effect  of  bankruptcy. 

77.  Effect  of  appeal. 

78.  Arbitration. 

79.  Effect  of  subsequent  fact  occurring. 

80.  Giving  special  powers  does  not  oust  general  powers. 

81.  Example  of  subsequent  fact  in  lunacy  proceedings. 

§  73.  It  is  a  settled  rule  that  the  jurisdiction  of  superior 
courts  cannot  be  taken  away,  except  by  express  words  or 
necessary  implications,  («)  and,  as  we  have  previously  re- 
marked, constitutional  powers  cannot  be  taken  away  by  mere 
legislation.  Even  where  a  legislature  grants  a  certain  body 
"full  power  and  authority  to  ai)prove  or  set  aside  an  election," 
it  is  not  to  be  implied  that  the  usual  supervisory  power  of 
the  supreme  court  is  taken  away.  Of  this  the  supreme  court 
of  Pennsylvania  remark :  "These  words  cannot  have  greater 
effect  than  the  words  'final  and  conclusive  between  the  par- 
ties,' used  in  a  great  variety  of  acts  of  assembly;  and  yet  it 
is  a  well-settled  principle  that  these  expressions  do  not  take 
away  the  jurisdiction  of  the  court.  The  legislature,  being 
aware  that  this  is  a  well-settled  rule  of  construction,  would, 
if  they  had  intended  to  preclude  inquiry,  have  prevented  this 
court  from  exerting  their  superintending  authority  by  exjiress 
prohibition. "(6)  And  this  matter  has  even  been  carried  so 
far  as  to  hold  that  "where  a  statute  says  such  a  matter  shall 
finally  be  determined  by  the  quarter  sessions  only,  and  that 

('/)King  V.  Canal  Co.  6  Eng.  L.  &  (//jCJoiiiinoii  wealth  v.  McCloskcy, 

E.  24G.  2  liawlo,  ?M). 


•62  DEFEAT    OF    JUPilSDICTIOX. 

KG  OTHER  court  sbrJl  intermeddle, ''  these  negative  words  do  not 
prohibit  a  certiorari, (r)  This  apjDears  extreme,  but  the  rule 
herein  would  probably  prevail,  and  the  words  be  construed 
only  to  forbid  any  other  original  jurisdiction.  However,  in 
Potter's  Dwarris,  229,  we  find  this  remark  quoted  from 
Tindal,  C.  J. :  "Yet,  w^iere  the  object  and  intent  of  the  statute 
manifestly  require  it,  words  that  appear  to  be  permissive 
only  shall  be  construed  as  obligatory,  and  shall  have  the 
effect  of  ousting  courts  of  their  jurisdiction;"  and  the  author 
appends  the  remark  that  "in  that  case,  [wherein  the  rule  was 
thus  laid  down,]  on  a  full  analysis  of  the  statute  in  question, 
the  courts  thought  the  jurisdiction  was  taken  away."  And,  I 
suppose,  in  all  cases  a  manifest  legislative  intention  will 
prevail  in  the  courts  over  the  language  of  a  statute,  in  accord- 
ance with  the  principle  declared  in  the  same  work,-  page 
231:  "The  sense  and  spirit  of  an  act,  however, — its  scope 
and  intention, — are  primarily  to  be  regarded  in  the  construc- 
tion of  statutes;  and  it  matters  not  that  the  terms  used  by 
the  legislature,  in  delivering  its  commands,  are  not  the  most 
apt  to  express  its  meaning,  provided  the  object  be  plain  and 
intelligible,  and  expressed  with  sufi&cient  distinctness  to  enable 
the  judge  to  collect  it  from  any  part  of  the  act.  The  object 
once  understood,  judges  are  so  to  construe  an  act  as  to  sup- 
press the  mischief  or  advance  the  remedy.  But  yet  the 
•court  is  not  at  liberty,  even  for  that  purpose,  to  introduce 
[into]  or  exclude  words  from  any  clause  of  a  statute,  but  is 
bound  to  construe  the  words  which  the  clause  contains,  with 
reference  always  to  that  which  appears  to  be  plainly  and 
manifestly  its  object."  Of  course,  great  care  is  requisite  in 
applj'ing  this  principle,  for  otherwise  it  leads  directlj'  to  judi- 
cial legislation. 

Moreover,  where  the  matter  of  jurisdiction  is  doubtful  as 
iio  any  court,  the  court  is  entitled  to  the  benefit  of  the  doubt, 
and  will  not  be  ousted  by  a  strict  construction ;  but  where  a 
party  in  good  faith  as  to  the  validity  of  a  jurisdiction  invokes 
it  in  his  behalf,  it  will,  in  general,  be  sustained. (ci?) 

(c)Burgenhofea      v.     Martin,     3  (d)Stanley  v.  Barker,  25  Vt.  510. 

Yeates,  (Pa.)  -ISO,  note. 


DEFEAT    OF    JURISDICTION.  63 

The  word  "shall,"  (imperative,)  and  conferring  exclusive 
jurisdiction,  will  be  construed  to  mean  "may,"  (permissive,) 
and  conferring  only  concurrent  jurisdiction,  when  the  literal 
construction  would  bring  the  act  into  conflict  with  a  constitu- 
tional provision,  (c) 

§  74.  The  creation  of  new  courts,  with  exclusive  jurisdiction 
in  a  certain  class  of  cases,  will  oust  the  jurisdiction  already 
attached  in  pending  cases;  at  least  this  is  so  in  criminal  mat- 
ters, and,  by  parity  of  reason,  I  judge  in  civil  matters  also. 
For  example,  where  an  act  declared  "that  there  is  hereby 
created  a  court  of  original  and  exclusive  criminal  jurisdiction 
in  all  cases  of  felony  and  misdemeanor  in  said  counties,"  etc., 
it  was  held  to  oust  the  jurisdiction  of  the  district  court  in  cases 
then  pending, (/)  and  on  a  rehearing  the  result  was  the  same. 
And  more  especially  is  this  the  case  where  the  act  provides 
that  immediately  on  its  passage  all  suits  and  proceedings, 
the  jurisdiction  of  which  is  vested  in  the  new  court,  shall  be 
transferred,  and  the  other  courts  divested  of  all  power  to  make 
any  order  in  them,  except  an  order  of  transfer;  and  this  is 
held  to  apply  to  cases  where  there  is  a  temporary  order  of 
injunction  existing, (^)  notwithstanding  the  general  rule  that 
one  court  cannot  dissolve  an  injunction  granted  by  another. 

§  75.  And,  indeed,  the  repeal  of  an  act  creating  an  offence 
discharges  all  pending  indictments  for  that  offence,  unless 
there  is  a  saving  clause  inserted  therein. (//)  And  so  as  to 
civil  suits;  when  a  statute  conferring  that  kind  of  jurisdiction 
is  repealed,  without  a  saving  clause,  pending  suits  altogether 
fail.(i)  But  this,  I  think,  is  unusual  legislation.  And  in 
criminal  cases  the  principle  prevails  wliere  the  jurisdiction 
is  exclusively  transferred  to  another,  even  an  inferior  court; 
80  that  indictments  pending  fail,  there  being  no  provision 
especially  for  them.(j) 

((?)Burns    o.    Henderson,   20    111.  (/7)State  ex  rd.  v.  Judge,  22  La. 

265.  An.  .569. 

(/)Stuljbs  «.  State,  .39  Tex.  571.  (/^Taylor  v.  State,  7  Blackf.  (Ind.) 

And  this  is  more  especially  the  93. 

case  in  regard  to  a  new  constitii-  (/)IIunt«.  .Jennings,  5  Blackf.  105. 

tion.     Kno.\  v.  Gurnett,  26  La.  An.  (.yjSpriggs    v.    State,    2     Carter, 

€01.  (Ind.)  75. 


64  DEFEAT    OF    JURISDICTION. 

§  76.  It  is  held  that,  under  the  United  States  bankrupt 
law  of  1867,  a  state  court  loses  all  jurisdiction  of  a  bankrupt 
and  his  estate,  even  in  pending  cases,  whenever  the  bank- 
ruptcy occurs,  except  in  regard  to  enforcing  prior  liens  on  the 
estate  of  the  bankrupt,  (/c)  and,  perhaps,  excepting  also  plain- 
tiffs in  pending  actions  should  have  notice  of  the  bank- 
ruptcy. 

However,  at  the  suit  of  an  assignee  state  courts  may  aid  in 
the  enforcement  of  bankrupt  laws,  as  by  setting  aside  fraud- 
ulent conveyances. (')  But  (at  least  after  notice)  all  efforts 
to  obtain  a  lien,  and  all  ordinary  proceedings,  are  to  be 
stayed  at  once.(m)  An  assignee  may  likewise  foreclose  a 
mortgage  in  a  state  court, (n)  or,  in  general,  collect  the  assets 
in  the  state  courts. (o) 

§  77.  Where  a  court  has  power  to  certify  a  case  to  an 
appellate  court,  and  makes  an  order  to  that  effect,  it  loses 
jurisdiction  until  the  case  is  remanded,  and  any  further  pro- 
ceedings, after  the  order,  will  be  disregarded  by  the  higher 
court, (_p)  the  case  then  standing  as  if  it  were  ajjpealed. 

§  78.  Although  parties  may  enter  into  a  valid  and  binding 
agreement  to  submit  questions  in  dispute  to  arbitration,  yet 
public  policy  requires  that  such  agreement  must  relate  to 
matters  now  disputed,  or  immediately  likely  to  be  disputed. 
"We  understand  the  law  to  be  settled,"  say  the  Delaware 
court,  "that  a  prospective  agreement  to  refer  all  matters  in 
dispute,  which  may  hereafter  arise,  cannot  be  shown  as  a 
defence  to  an  action  for  the  recovery  of  such  disputed  matter, 
for  the  superior  courts  will  not  suffer  themselves  to  be  ousted 
of  their  jurisdiction  by  the  private  agreement  of  the  par- 
ties, "(g)  And  the  Pennsylvania  court  say  :  "General  clauses 
providing  for  the  settlement  by  arbitration  of  disputes  that 
may  arise  between  the  contracting  parties  are  not  infre- 
quently inserted  in  partnership  agreements,  leases,  and  other 

(A:)Elliott    t).    .Johnson,   44    Tex.  (o)Waite  v.  Young,  Id.  221,  Tol- 

IhU;  Boone  v.  llevis,  Id.  384;  Han-  cott,  ,J.,  dissenting, 

cock   V.    Henderson,  45   Tex.   479;  (;))ilurry  «.  Smith,  1  Hawkes,  (N". 

Doe  ».  Childress,  21  Wall.  643.  C.)  43. 

(Olsett  V.  Stuart,  80  111.  404.  (r/)RandeI  «.   Canal  Co.,  1  Harr. 

(/H)lirutton  D.Anderson,  5  S.C.504.  275  ;  Pearl  v.  Harris,  121  Mass.  390. 

(njBurlingame  v.  Puree,  12  Hun. 145. 


DEFEAT    OF    JURISDICTION.  65 

instruments  of  writing,  but  they  do  not  take  away  the  juris- 
diction of  the  courts.  Whether  they  would  be  a  ground  of 
action  should  one  party,  on  request  of  the  other,  refuse  to 
concur  in  naming  an  arbitrator,  may  be  doubted,  but  cer- 
tainly a  plea  of  this  kind,  in  nature  of  a  plea  to  the  jurisdic- 
tion, would  not  be  entertained.  It  is  not  to  be  supposed  that 
parties  to  such  agreements  waive  the  jurisdiction  of  the 
ordinary  tribunals  of  the  country,  unless  they  expressly  include 
them.  Even  a  nomination  of  an  arbiter,  under  a  submission 
of  existing  controversies,  may  be  revoked,  and,  though  the 
jjarty  may  forfeit  his  bond,  the  jurisdiction  of  the  court 
remains.  It  is  possible  special  cases  may  exist  where  a  court 
of  equity  might  deem  it  exj^edient  to  hold  the  parties  to  a 
tribunal  constituted  by  themselves,  but,  generally  speaking, 
these  clauses  are  of  no  avail,  and  amount  only  to  an  empty 
name.''(r) 

§  79.  It  is  stated,  as  a  general  rule,  that  where  jurisdiction 
is  once  lawfully  and  properly  acquired  no  subsequent  fact  in 
the  particular  cause  can  defeat  that  jurisdiction;  as,  for  in- 
stance, where  the  amount  sued  for  is  within  the  jurisdiction 
at  the  inception  of  the  suit,  but  by  delay  and  consequent  accu- 
mulation of  interest  the  amount  is  increased  beyond  the  juris- 
diction, while  the  matter  is  pending,  and  before  judgment. (s) 
Further,  it  is  declared  that  if  there  is  any  exception  to  this 
rule  it  is  when  a  change  in  the  parties,  after  suit  commenced, 
is  of  a  nature  to  work  an  abatement.  And  the  acceptance  of 
the  office  of  consul,  after  the  commencement  of  a  suit,  is  not 
such  a  change. (i)  Nor  is  the  removal  of  parties  from  the 
state  after  suit  is  commenced. (m)  Nor  does  dismissing  as  to 
a  party  improperly  joined  of  itself  oust  jurisdiction,  (r;)  The 
loss  of  the  basis  of  the  action  does  not  oust,  necessarily. 
Thus,  the  supreme  court  of  Kentucky  say:  "Nor  have  we  any 
doubt  that,  as  the  covenant  was  in  existence,  and  within  the 

(r)Gray  «.  Wilson,  4  Watts,  41.  (M)Tapley  v.  Martin,  116  Mass. 

(s)Tindall  «.  Meeker,  1  Scam.  139.  275;  Upton  9.  K.  R.  25  N.  J.  Eq. 

(i!)Koppell  c.  Hendricks,  1  Barb.  372. 

451.  (v)Dickson  e.  R.  R.  81  111.  275. 
v.l— 5 


GG  DEFEAT    OF    JURISDICTION. 

power  of  the  plaintiff  in  the  action  when  the  suit  was  com- 
menced, the  accidental  destruction  of  it  by  burning,  pendente 
lite,  did  not  oust  the  common  law  court  of  jurisdiction,  even 
if  it  should  be  conceded  that  here  now,  where  profert  is  not 
essential,  an  action  at  law  cuuiiot  lie  maintained  on  a  covenant 
lost  at  the  date  of  the  writ."(^()  And  so  it  has  been  held  in 
New  York  that  if  the  lien  of  a  mechanic  fails,  pending  a  suit 
to  enforce  it,  a  personal  judgment  may  still  be  rendered  in  the 
action.  (.1-) 

In  a  criminal  case,  where  one  of  the  judges  had  occasion  to 
leave  the  bench  for  a  few  moments  to  hand  a  paper  to  a  per- 
son waiting  to  receive  it,  and  before  his  return  an  objection 
to  the  admission  of  a  deed  was  decided,  it  was  claimed,  on 
error,  that  this  circumstance  vitiated  the  proceedings.  But 
the  court  held  that  the  objection  was  hardly  worthy  of  notice, 
and  that  the  action  of  the  judge  neither  broke  up  the  court 
nor  impaired  the  validity  of  the  proceedings,  since  there  was 
still  a  quorum  on  the  bench  to  decide  questions  arising  in  the 
cause. ((/)  And  so,  in  the  same  state,  it  has  been  decided  that 
if,  in  a  criminal  proceeding,  one  of  the  judges  necessary  to 
constitute  a  duly  organized  court  is  called  from  the  bench  to 
testify  as  a  witness,  this  does  not  oust  the  jurisdiction. (j) 
But  of  course  the  principle  would  not  apply  to  the  absence  of 
a  juror,  since  it  requires  the  whole  panel  to  constitute  a  quo- 
rum. And  where  jurisdiction  is  limited  to  sums  above  a  cer- 
tain amount,  and  an  action  is  brought  in  good  faith  wherein  the 

(M))Blissf).  Turnpike,  9  Dana,  265.  Texas  it   has   been   held   that   the 

(a')Darr()w  v.   Morgan,   65  N.  Y.  escape  of  a  prisoner,  after  convic- 

333.     And  see  Hunt  v.  Hunt,  72  N.  tion   and    before    sentence,    ousts 

Y.   217,  wliere   it  is  declared  that  jurisdiction,  so  that  if  the  prisoner 

jurisdiction   is   not   dependent    on  is  afterwards  apprehended  he  can- 

the  state  of  facts  in  any  particular  not  be  sentenced  on  the  verdict, 

case,  or  the  ultimate   existence  of  Brown  v.  State,  5  Tex.  Ct.  App.  546. 

a  good  cause  of  action  in  the  plain-  The    death    of    a    defendant   does 

tiff.    The  mere  granting  of  a  like  not  ipso  facto  work  a   transfer  of 

jurisdiction  to  another  court  does  the  case  to  the  probate  court  from 

not  oust  previous  jurisdiction.     In  a   court   of  ordinary   jurisdiction, 

such  case  the  grant  is  construed  to  Bussy  &  Co.  v.  Nelson,  30 La.  An.  25. 

be  that  of  a  concurrent  jurisdiction.  (//)TuttIe  v.  People,  36  N.  Y.  440. 

Hays  V.  McNealy,  16  Fla.  40y.     In  (z)tState  «.  Dohring,59  N.  Y.  374. 


DEFEAT    OP    JURISDICTION.  67 

amount  is  found  to  be  below  the  limitation,  tins  fact  will  not 
in  general  oust  the  court  from  its  jurisdiction,  whether  it  be 
ex  cu)itractu{(i)  or  in  tort. (6)      (See  chapter  on  Values.) 

In  the  case  of  a  vacancy  in  the  office  of  municipal  judge,  the 
insertion  of  the  name  of  the  recorder  of  the  court,  on  whom 
the  duties  devolve  during  vacanc,y,  in  a  warrant  as  a  witness, 
will  not  deprive  him  of  jurisdiction,  since  in  such  cases, 
otherwise,  "jurisdiction  might  be  the  creature  of  a  fiction. "(c) 

An  incidental  question  concerning  the  title  to  land  does 
not  oust  the  jurisdiction  of  a  court  forbidden  to  try  titles, 
although  it  has  no  jurisdiction  when  there  is  a  direct  and 
distinct  issue  of  title  made  by  the  pleadings,  since,  in  that 
case,  the  matter  of  title  is  the  foundation  of  action,  at  least 
in  part.  So  if  suit  be  brought  on  a  promissoiy  note,  and  the 
defence  is  that  the  note  was  given  for  land  to  which  the 
plaintiff'  had  no  title,  and  for  which  he  had  failed  to  make  a 
deed,  this  does  not  oust  jurisdiction. (t:?)  The  prohibition  re- 
lates to  cases  in  which  the  purpose  of  the  action  is  to  recover 
the  land  or  settle  the  question  of  title,  (e) 

On  this  principle  it  is  that  a  plea  to  the  jurisdiction  of  the 
circuit  courts  of  the  United  States,  on  the  ground  of  citizen- 
ship, must  allege  that  the  parties  were  citizens  of  the  same 
state  when  the  action  was  commenced,  and  not  that  they 
afterwards  became  so,(/)  And,  also,  in  order  to  have  a  case 
transferred  to  the  United  States  courts,  under  the  act  of  1867, 
it  is  requisite  that  the  ground  should  not  be  that  the  parties 
were  citizens  of  different  states  at  the  time  the  motion  is 
made  for  a  transfer,  but  at  the  time  of  commencing  the 
suit.(^)  The  necessity  of  this  rule  is  obvious,  for  otherwise 
the  jurisdiction  of  courts  could  be  trifled  with  at  will.  Of 
course  a  proper  removal  of  a  cause  to  the  United  States 
courts  at  once  stops  proceedings  in  the  state  courts. (/<) 

(ajSpafford  v.  Richardson,  13  Vt.  (e)Macy    v.    Alley,    18   Ala.   12s  ; 

226.  Ohse  v.  Bruss,  45  Wis.  442. 

(6)Waters  v.  Langdon,  16  Vt.  570.  (/)Mollan  v.  Terrence,  9  Wheat. 

(f)Wills  V.  Whitlill,  4:3  Me.  r.47.  539. 

{d)liogQrs    V.   Perdue,   7    Blaekf.  (i;)Tapley«.  Martin,  116  Mass.  27li. 

303;  Ilawey  v.  Dakin,  12  Ind.  481.  (A)I)urham  v.  IS.  L.  I.  Co.  46  Tex. 

182. 


68  DEFEAT    OF    JURISDICTION. 

The  rule  does  not  apply  to  cases  of  attachment,  where 
the  proceedings  are  properly  commenced,  but  there  is  a  faO- 
ure  to  give  the  statutory  notice  within  the  prescribed  period. 
This  failure  has  the  effect  of  destroying  the  jurisdiction  of 
the  court  over  the  pending  case,  and  a  subsequent  notice  will 
not  restore  it  so  as  to  preserve  the  lien  of  the  attachment. (i) 

§  80.  The  fact  that  a  private  act  of  a  legislature  by  its 
terms  provides  that  the  judge  of  a  county  court  may  remove 
a  particular  nuisance,  is  held  not  to  imply  that  a  circuit  court 
is  thereby  ousted  of  its  usual  jurisdiction  to  abate  the  nuis- 
ance by  indictment. (j)  At  the  most,  the  act  must  be  con- 
strued to  give  a  concurrent  jurisdiction. 

§  81.  Where  a  person  became  a  lunatic,  and  conservators 
were  appointed  according  to  law,  and  began  proceedings  in 
chancery  to  subject  his  estate  to  the  payment  of  his  debts, 
and  while  these  proceedings  were  pending  the  lunatic  recov- 
ered his  reason  and  appeared  in  court,  asserting  the  recovery, 
and  moving  thereon  to  set  aside  all  that  had  been  done  in 
the  matter,  it  was  held  the  subsequent  recovery  did  not  oust 
the  jurisdiction  previously  acquired. (A-) 

(/jMillarv.  Babcock,  29  Mich.  527.  (A;)SaIter  v.  His  CreditorB,  6  Bush. 

0')State  V.  Bell,  5  Port.  (Ala.)  377.       630. 


PARTIES.  69 


CHAPTER   XX 

PARTIES. 

i  82.   "  Day  in  court  " — notice. 

83.  Bunimous. 

84.  Fraud  on  party  defendant. 

8.5.  Party  in  court  bound  to  take  notice  of  the  proceedings. 

86.  Conferring  personal  jurisdiction  by  appearance. 

87.  Non-residents. 

88.  Notice  as  to  non-residents. 

89.  Foreign  corporations. 

90.  Equity  jurisdiction  from  residence. 

91.  Record  parlji  gives  the  jurisdiction. 

92.  State  as  party. 

93.  Consuls. 

94.  Indians. 

95.  Non-resident  plaintiffs. 

96.  Officers  of  U.  S.  government. 

97.  Service  and  return  statutory. 

§  82.  It  is  imperative  that  any  person  to  be  affected  by 
the  action  of  the  court  should,  when  possible,  "have  his  day 
in  court,"  and,  therefore,  have  personal  notice  of  the  pro- 
ceeding ;  and,  in  no  case,  can  a  personal  judgment  be  entered 
without  this.  And  Liringsfon,  J.,  in  a  New  York  decision, 
declared  that  "a  sentence  obtained  in  defiance  of  the  maxim 
audi  alteram  pcwtem  deserves  not  the  name  of  judgment. "(a) 
The  court  of  Maine  say :  "In  a  suit  brought  in  a  court  of 
common  law  a  service  upon  the  person  or  persons  adversely 
interested  is  essential ;  without  this,  in  some  mode  recognized 
by  law,  the  court  cannot  proceed,  and  if,  inadvertently,  a 
judgment  should  be  rendered,  it  would  be  a  nullity,  or  would 
be  reversed  on  proper  proceedings.  Before  a  conclusive  judg- 
ment can  be  rendered,  which  can  in  any  manner  affect 
another  party  in  the  most  trivial  suit,  that  party  must  have 
legal  notice  of  its  pendency. "(7>)     When  a  court  acts  without 

(a)Hitchcock  «.  Aiken,  1  Caine.s,473.     (ijDavis,  Ex  parte,  41  Me.  .59. 


70  PAKTIES. 

jurisdiction  of  the  subject  or  the  person,  its  proceedings  are 
not  merely  erroneous,  therefore,  but  wholly  void,  and  may  be 
attacked  in  a  collateral  as  well  as  in  a  direct  action.(c)  Bron- 
son,  C.  J.,  in  a  New  York  case,  boldly  declared,  in  most  emphatic 
language,  that  "the  state  must  not  boast  of  its  civilization, 
nor  of  its  progress  in  the  principles  of  civil  liberty,  where  the 
legislature  has  power  to  provide  that  a  man  may  be  con- 
demned unheard,"  even  where  he  is  jointly  liable,  and  the 
other  defendant  was  served  with  process. (rf)  But  one  of 
the  judges  dissented  from  the  opinion  of  the  court,  on 
a  ground  which  he  fortified  most  ably  with  authorities, 
namely,  that  where  there  is  but  one  cause  of  action,  whether 
it  be  against  a  single  person  or  many,  the  original  cause  of 
action  is  merged  in  a  judgment,  and  that  neither  the  matter 
nor  jDarties  can  be  severed,  unless  the  cause  of  action  is  joint 
and  several;  which,  for  example,  is  not  the  case  in  actions 
against  partners.  There  is  no  doubt,  I  supj)0se,  that  where 
interests  are  absolutely  inseparable,  as  partnerships  may  be, 
service  on  one  defendant  may  justify"  a  judgment  merging  the 
entire  cause  of  action,  so  that  no  action  could  be  sustained 
afterwards  against  either  of  the  defendants  on  the  original 
promises,  but  only  an  action  of  debt  on  the  judgment.  In 
a  joint  and  several  action,  however,  the  several  service  of 
process  would  be  required  on  a  judgment  against  all  the 
co-debtors. 

And  it  is  so  where  an  action  is  brought  individually  against 
the  members  of  a  firm,  even  if  the  action  might  have  been 
brought  against  the  firm  itself.(e)  And,  in  a  suit  against  a 
firm,  service  on  an  alleged  partner  will  not  give  jurisdiction  of 
the  person  of  another  alleged  partner,  if  it  turns  out  that  no 
partnership  existed  between  them.(/) 

The  principle  is  that,  "if  requisite  notice  has  not  been  given 
to,  or  process  has  not  been  served  upon,  a  party^  the  court  has 
no  more  authority  to  adjudicate  upon  his  rights  than  a  stranger 

(f)Barnes  v.  Harris,  4  Comst.  379.  (c)Weaver   v.  Carpenter,   42    la. 

(ri)Oakley  v.  Aspinwall,  4  Comst.  (/)Nixon  v.  Downey,  42  la.  78. 

521.     See  dissenting   opinion,  and  343. 
cases  therein  cited. 


PAETIES.  71 

or  a  private  individual.  And  all  that  the  court  does,  all  its 
findings,  are  absolutely  void — as  well  the  finding  that  the 
notice  was  given  or  j)rocess  served  as  the  others;"  although 
such  finding  in  regard  to  notice  or  process  is  j^fima  facie  evi- 
dence of  the  fact(^)  in  a  direct  attack,  and  in  a  collateral 
attack  is  so  far  conclusive  that  it  can,  in  most  if  not  all  the 
states,  be  contradicted  only  by  other  facts  of  the  record,  since 
a  record  imports  absolute  verity  in  all  collateral  proceed- 
ings, (/i)  And  after  the  term  at  which  a  judgment  is  rendered 
it  cannot  be  attacked  by  a  motion  to  set  it  aside,  supported 
by  affidavits,  because  of  its  absolute  verity,  (i) 

And,  moreover,  where  a  statute  prescribes  the  mode  of  ob- 
taining personal  jurisdiction  it  must  be  strictly  pursued,  or 
the  jjroceeding  will  be  a  nullity,  whether  in  a  sujjerior  or  in- 
ferior court,  and  as  utterly  void,  indeed,  as  if  it  undertook  to 
adjudicate  where  it  had  no  jurisdiction  of  the  subject-matter. 
But  in  Minnesota  it  has  lately  been  held  that  if  a  statute  pro- 
vides that  "no  summons  shall  issue  until  complaint  be  filed," 
and  also  provides  that  all  pleadings  shall  be  verified,  the  lat- 
ter provision  is  not  jurisdictional,  since  a  verification  is  not, 
properly  speaking,  a  part  of  the  pleading  to  which  it  is  at- 
tached. McNath  V.  Par.ions,  unreported.  And  the  principle 
applies  to  a  probate  court  ordering  a  sale  of  lands  when  in- 
fant heirs  were  not  represented  by  a  guardian  ad  litem. (j)  A 
guardian  ad  litem  cannot  enter  an  appearance  for  minors 
without  service  of  process. (A)  It  is,  however,  held  in  Illinois 
that  where  there  is  service  on  minors  the  failure  to  appoint  a 
guardian  ad  litem  is  error,  but  does  not  render  the  judgment 
or  decree  absolutely  void,  (7)  such  appointment  not  being  re- 
garded as  jurisdictional. 

And  where  a  statute  requires  service  of  notice  upon  an  in- 
dividual it  means  personal  service,  unless  some  other  is  indi- 
cated. And  if  the  statute  requires  personal  notice  of  a  vil- 
lage ordinance  to  be  given  owners  of  lots  to  be  afl'ected  by 

(,<7)Gou(lyv.  rial],  30  111.  116.  (j)  Bloom    v.    Burdlck,    1     Hill, 

(/(jLawver    v.   Langhans,   85   111.  139. 

138;  Harris  «.  Lester,  SO  111.  307.  (A)Cliamhers     v.    Jones,     72    111, 

(i) Humphrey ville  v.  Culver,  etc.,  275. 

73  111.  487.  (OGage  v.  Schroder,  73  111.  44. 


72  PAKTIE3. 

the  ordinance,  a  notice  by  mail  will  not  suffice,  even  if  it 
reaches  the  party.  And  so,  if  a  statute  requires  that  notice  of 
a  village  ordinance  shall  be  published,  such  publication  of  the 
ordinance  will  not  suffice,  without  a  notice  that  it  is  an  ordi- 
nance duly  passed. (m)  A  statutory  requirement  of  service 
means  a  summons  in  law  suit.(u)  And  even  as  to  a  non- 
resident a  statute  may  imperatively  require  the  mailing  of  a 
summons,  (o) 

The  rule  in  equity  is  the  same,  namely:  "The  power  of  the 
court  to  proceed  to  a  decree  in  the  absence  of  parties  depends 
on  the  nature  of  their  interest  and  the  mode  in  which  it  will 
be  affected  by  the  decree.  If  they  are  only  passive  objects  of 
the  judgment  of  the  court,  or  their  rights  are  incidental  to 
those  of  parties  before  the  court,  a  complete  determina- 
tion may  be  obtained.  But  if  they  are  to  be  active  in  j)er- 
forming  the  decree,  or  if  they  have  rights  wholly  distinct  from 
those  of  the  other  parties,  the  court,  in  their  absence,  cannot 
proceed  to  a  determination  against  them,  "(p) 

§  83.  The  usual  mode  of  giving  notice  is  by  summons, 
served  by  an  officer  of  the  court,  and  duly  returned  into  tiie 
the  court.  The  date  of  the  commencement  of  the  suit  is  held 
to  be  the  date  of  the  writ ;  but  actual  jurisdiction  is,  of  course, 
not  acquired  until  service  is  made.  And,  where  a  court  has 
enlarged  jurisdiction  as  to  subject-matter,  a  service  is  wholly 
void  which  was  made  of  a  writ  issued  between  the  passage  of 
the  enlarging  act  and  the  time  prescribed  for  its  taking  eff'ect; 
it  being  held  in  such  case  that  the  suit  was  commenced  be- 
fore the  court  had  any  right  to  take  jurisdiction. (g')  Whether 
this  could  be  cured  by  subsequent  consent  of  the  parties  is  not 
deteimined;  but  I  judge  not,  under  the  inflexible  rule  that, 
as  to  subject-matter,  consent  cannot  give  jurisdiction.     This 

(;7i)Rat]iburn?x  Acker, 18 Barb. •S'^S.  or  there  is  no  personal  jurisdiction 

(rt)Smitli  V.  Wells,  69  N.  Y.  600.  acquired  thereby.     Kyle  «.  Kyle,  55 

('>)[bid.  Ind.  387.     And  the  return  of  the 

{j>)C"ole;nan"s  Appeal,  75  Pa.  St.  officer  must  specify  the  name   of 

457.  the  defendant  on  whom  service  is 

(f/)Wheatland     v.    Levering,    10  had  if  the  name  does  not  appear  in 

Gray,   16.       Service    of    summons  the  summons.     Brooks  ».  Allen,  62 

must   be  by  an  authorized  person,  Ind.  401. 


I 


PAr.TiES.  73 

would  seem  to  lead  to  the  logical  deduction  that  an  unau- 
thorized institution  of  suit  could  not  afterwards  be  in  any 
manner  legalized,  but  proceedings  would  of  necessity  have  to 
be  begun  anew.  It  is  even  held  doubtful,  indeed,  whether  a 
statute  expressly  designed  to  be  retroactive  upon  proceedings 
in  court  can  be  allowed  to  have  that  effect  in  operation. (r) 

§  84.  It  is  a  settled  principle,  however,  that  a  court  will 
not  sanction  any  fraud  or  misrepresentation  or  trickery  in 
bringing  a  party  within  the  jurisdiction ;  and  so,  where  one 
is  induced  by  a  false  statement  to  come  within  the  reach  of 
process,  and  then  is  personally  served,  the  service  will  be  set 
aside  on  motion. (s)  And,  also,  where  a  non-resident  comes 
in  good  faith  within  the  state  to  testify  as  a  witness,  and 
for  that  purpose  only,  it  is  usually  held  that  he  is  exempt 
from  the  service  of  a  summons,  and  if  one  be  served  it  will 
be  set  aside. (i)  And  this  is  held  to  be  of  great  practical 
importance,  inasmuch  as  "princiijles  of  public  policy  require 
that  no  unnecessary  obstacles  should  be  interposed  to  prevent 
the  attendance  and  examination  of  witnesses  in  the  presence 
of  the  court  and  jury." 

§  85.  When  a  party  is  once  in  court  by  any  legal  means  he 
is  then  bound  to  take  notice  of  all  subsequent  proceedings  in 
the  cause. (»)  But  it  is  not  so  where  there  is  an  actual  dis- 
continuance; as,  for  example;  where  two  defendants  were 
summoned  before  a  magistrate,  and  appeared  on  the  return 
day,  whereas  both  the  magistrate  and  the  plaintiff  were 
absent,  so  that  no  proceedings  were  had  in  the  case.  But 
three  days  afterwards  one  of  the  defendants,  in  presence  of 
the  other,  and  also  of  a  witness,  in  the  absence  of  the  jus- 
tice, indorsed  on  a  note  found  in  the  office  of  the  justice 
(being  a  joint  and  several  note  of  the  two  defendants)  his 
individual  confession  of  judgment,  and  on  the  same  day  the 
justice  rendered  judgment  thereon  in  favor  of  the  plaintiff. 

(r)Warren   Mamif.  Co.  «.  Ins.  Co.  must    be    voluntary.        People    v. 

2  Paine  C.  C.  .",17.       ^  Judge,  40  Mich.  729. 

(»)Carpenter  v.  Spooner,  2  J^andf.  (/)-^eaver  v.    Robinson,    3    Duer, 

(IT.  Y.)  717;  Wanzer  v.  Bri,2;lit,  52  (N.  Y.)  frl:',. 

111.  41.  (M)Thonia3    v.    Alford,    20   Tex. 

And  in  all  eases  an  appearanec  492. 


74 


PARTIES. 


Execution  having  been  levied  on  the  property  of  the  defend- 
ant who  had  not  joined  in  this  confession  he  brought  trespass 
against  the  justice,  and  it  was  held  that  when  the  judgment 
was  rendered  the  justice  had  no  jurisdiction  over  this  defend- 
ant— the  summons  having  spent  its  force  on  the  return  day — 
so  that  the  parties  were  out  of  court  and  the  cause  discon- 
tinued, and  therefore  the  justice  was  liable  in  the  action,  (r) 

§  86.  However,  in  the  absence  of  service  of  process  a  party 
may  give  personal  jurisdiction  to  a  court  either  by  an  actual 
or  virtual  consent. (w)     And  the  principle  applies  to  an  im- 


(r)C'lurk  «.  Holmes,  1  Doug.  391. 

(/fjMcCormick  v.  R.  R.  49  N.  Y. 
3U9. 

Where  there  is  a  voluntiiry  ap- 
pearance, for  the  general  purpose 
of  defence,  there  is,  of  course,  no 
necessity  of  a  summons.  And  the 
appearance  may  be  l)y  attorney. 
Wasson  v.  Cone,  86  111.  46.  If  an 
appearance  is  made  specially  for 
the  purpose  of  objecting  to  the  ju- 
risdiction, the  motion  must  be  re- 
stricted to  this  specific  purpose  or 
else  it  will  confer  general  jurisdic- 
tion in  the  case.  Aultman  &  Tay- 
lor Co.  V.  Steinau,  8  Neb.  109.  A 
motion  to  change  the  venue  con- 
fers such  jurisdiction.  Taylor  «. 
R.  R.  Co.  68  Mo.  397.  And  more 
especial  1}%.  if  there  is  a  plea  entered 
as  to  the  merits,  it  is  too  late  after- 
wards to  raise  the  question  of  juris- 
diction of  the  person.  Gott  v. 
Brigham,  41  Mich.  227.  And  it  has 
even  been  held  that  if  one  appears 
by  attorney  or  in  person  to  object 
to  the  jurisdiction  he  cannot  after- 
wards object  to  the  sufficiency  of 
the  summons  or  notice.  Church  v. 
Cro.ssman,  49  la.  444.  And  an  ap- 
pearance may  be  made  hya,  written 
memorandum  of  the  defendant, 
staling  that  he  waives  notice  and 
makes  a  voluntary  appearance. 
Shaw  V.  Bank,  49  la.  179.  And  so 
a  party  who  voluntarily  intervenes 


in  an  action  cannot  afterwards 
deny  the  jurisdiction  of  the  court 
therein.  Jack  et  al.  v.  R.  R.  49  la. 
627.  In  all  cases  the  objection 
must  be  raised  promptly.  Dake  v. 
Miller,  15  Hun.  356.  However, 
where  the  objection  is  not  as  to 
personal  jurisdiction,  but  is  to  the 
effect  that  the  court  has  not  juris- 
diction of  the  action,  on  the  ground 
of  venue,  or  any  other  ground  go- 
ing to  the  essential  jurisdiction  of 
tlie  cause,  a  general  appearance  is 
not  a  waiver.  Wlieelock  v.  Lee, 
74  N.  Y.  495.  On  the  general  prin- 
ciple tliat  consent  cannot  give 
jurisdiction  of  a  subject-matter, 
parties  cannot  waive  the  want  of 
jurisdiction  so  as  to  make  experi- 
mental ca.ses  for  the  courts,  (Geor- 
gia, etc.,  Loan  Association  v.  Mc- 
Gowan,  59  Ga.  811,)  for  waiver  per- 
tains alone  to  jurisdiction  of  the 
person.  Where  jurisdiction  depends 
on  the  "residence"  of  a  person,  the 
word  "residence"  is  to  be  regarded 
as  denoting  permanence,  and  not  a 
mere  temporary  stay  in  a  particular 
locality.  Bank  «.  Reed,  45  Conn. 
391;  Church  v.  Grossman,  49  la. 
.445.  A  minor  cannot  make  an  ap- 
pearance so  as  to  waive  service  of 
process,  or  legal  notice.  Bonnell  ». 
Holt,  89  111.  72;  Carver  e.  Carver, 
64  Ind,  196;  Helms  v.  Chadbourue^ 
45  Wis.  61. 


PARTIES.  75 

proper  change  of  venue. (.c)  And  where  suit  is  originally 
l)vougbt  in  a  wrong  county,  a  failure  to  make  objection  will 
operate  as  a  waiver;  as  where  a  statute  requires  suit  on  an 
official  bond  to  be  brought  in  the  county  where  the  bond  was 
executed. (^)  And  objection  must  be  made  in  apt  time.(5') 
In  all  ordinary  cases  a  failure  to  object,  and  taking  steps  in 
a  cause,  waives  the  right  to  object. (<(.)  And  for  tliis  purpose* 
too,  a  general  appearance  will  suffice.  The  principle  under- 
lying this  is,  that  one  may  waive  a  personal  privilege  in  all 
cases  where  public  policy  is  not  contravened  thereb3^  Other- 
wise a  defendant  may  submit  his  person  to  the  jurisdiction 
of  any  court. (/>)  Thus,  where  a  defendant  apxDeared,  and  on. 
motion  obtained  a  change  of  venue  to  a  court  not  then  hav- 
ing equity  jurisdiction,  and  then,  after  equity  jurisdiction 
had  been  conferred  upon  the  court,  demurred,  because  of  the 
want  of  equity  jurisdiction  when  the  change  of  venue  was 
made,  it  was  held  that  his  general  appearance  precluded  his 
objecting  to  the  jurisdiction  to  wliich  he  had  voluntarily  trans- 
ferred the  cause,  and  where,  until  filing  the  demurrer,  the 
cause  had  been  pending  as  a  law  action,  though  properly  be- 
longing to  the  equity  side  of  the  court.  And  especially  as 
the  jurisdiction  had  been  obtained  before  the  filing  of  the 
demurrer,  (c)  And  so,  where  a  defendant  appeared  and  filed 
a  set-off,  and  then  moved  to  dismiss  for  want  of  personal 
jurisdiction,  it  was  held  that  his  motion  came  too  late. (J) 
And  thus,  after  a  general  aj)pearance,  (with  the  exception  I 
have  intimated  above,)  one  cannot  submit  himself  to  the  ju- 
risdiction, and  then  object  that  the  suit  ought  to  have  been 
brought  in  another  county. (c)  And  if  a  defendant  appears 
in  court  to  give  notice  of  an  appeal,  he  cannot  afterwards  be 
allowed  to  deny  the  jurisdiction  over  his  person. (/)     Where 

(.;■) Carpenter   «.    Shepardson,   43  (i)Campl)ell   v.    Wilson,    6    Tex. 

Wis.  406.  392. 

(.y)('l()man«.  Staton,7S  N.  C.  235.  (c)Polk    Co.  «.  Hierb,  37  la.  362. 

(OMcMinn  v.  Hamilton,  77  N.  C.  (rt)Thornton  v.   Leavitt,  63  Me. 

udO.  38'). 

(^<)Eitel  V.  Bracken,  38  N.  Y.  Su-  (f)Brown  v.  Webber,  6  Cash.  .''.63. 

perlor  Ct.  13;  Ward  v.  Roy,  69  N.  (/)i^'t:e   v.  Iron  Co.  13  Ohio    tSt. 

Y.  96.  56i. 


7G  PARTIES. 

venue  is  changed  by  agreement,  an  appearance  to  the  action 
afterwards,  in  the  court  to  which  transfer  was  made,  waives 
objections  as  to  the  jurisdiction  and  the  regularity  of  the 
change  of  venue, (r/) 

But  where  a  defendant  appears  specially  to  contest  the 
jurisdiction,  the  appearance  does  not  waive  the  objection  ;(/i) 
although  such  an  appearance  must  be  understood  to  be  made 
upon  application  to  the  court,  in  New  Hampshire. (i)  Probably 
leave  would  be  implied  under  the  general  practice. 

Even  an  unauthorized  appearance  by  an  attorney  will  bind 
defendants  so  far  that  they  cannot  question  its  validitj^  collat- 
erally, (ji)  This  seems  to  be  on  the  ground  that  attorneys 
are  officers  of  the  court,  and  prima  facie  their  acts  are  pre- 
sumed regular. 

There  are  exceptions  to  the  general  rule  of  consent  as  to 
personal  jurisdiction;  as,  for  example,  where,  to  subserve 
public  interests,  a  bank  corporation  is  prohibited  from  con- 
senting to  jurisdiction  out  of  its  county,  (/«;)  or  where  a  statute 
positively  requires  an  action  against  an  officer  to.be  brought 
in  the  county  where  the  cause  of  action  arose. (Z) 

§  87.  It  is  held  to  be  a  principle  of  the  common  law  that 
any  non-resident  defendant  voluntarily  coming  within  the 
jurisdiction  may  be  served  with  process,  and  comjjelled  to 
answer. (m)  Where  the  jurisdiction,  however,  depends  upon 
the  residence,  there  must  usually  be  an  averment  of  the  resi- 
dence. (?i) 

In  New  York  it  is  held  that  the  courts  have  jurisdiction  of 
actions  for  torts  as  to  property,  even  where  the  parties  are 
non-resident,  and  the  torts  were  committed  out  of  the  state, 
if  the  defendant  is  served  with  process  within  the  state, (o) 
But  Gierke,  J.,  very  vigorously  dissented  in  the  case,  and,  I 
judge,  with  good  reason. 

{,7).Vnrora  Fire  Ins.  Co.  v.  .John-  (^-jCentral  Bk.e.Gibson,llGa.459. 

-son,  46  Ind.  321.  (/)Cowen  v.  Quinn,  13  Hun.  344. 

(/i)Branner  «.  Chapman,  11  Kan.  (/«)Semple  V.  Anderson,  4  Gilm. 

121.  ([]!.)  -,.59. 

(OWrioht«.  Haywanl,  37iSr.H.  19.  (n,)riaddock  v.  Waterman,  11  111. 

0')    eed  V.  Fratt,  2  Hill,  (S.  Y.)  470. 

€6;  Rust  «.  Frotliingliam,  Brecse,  (^)Latoui-ctte  t.  Clark,  45  Barb. 

<I11  )  331.  331. 


1 


PARTIES.  *  ♦ 

Beyond  all  doubt,  where  a  person  is  absent  from  a  state, 
but  by  means  of  an  innocent  agent  or  instrument  commits  a 
crime  in  the  state,  he  will  be  held  amenable  to  its  laws.  If 
the  crime  is  the  immediate  results  of  his  acts  he  is  to  be  made 
to  answer  for  it,  because,  in  contemplation  of  law,  he  is  present 
at  the  perpetration  thereof.  (^)  Thus  it  has  been  held  that  one 
who  forges  titles  in  one  state,  to  take  effect  on  lands  in  another 
state,  may  be  indicted  in  the  state  where  the  lands  are  situ- 
ated, (g)  And  in  Massachusetts  an  accessory,  either  before 
or  after  the  fact,  may  be  punished  as  a  principal  for  a  crime 
committed  in  another  state,  as  if  it  were  committed  in  the 
home  jurisdiction. (?■) 

§  88.  Even  where  party  defendants  are  non-residents,  and 
the  proceedings  are  in  rem,  notice  is  essential  in  actions  by  com- 
mon law  courts.  The  ownership  of  property,  of  whatever  kind, 
does  not  give  jurisdiction  of  the  person  ;(s)  and  it  is  requisite 
that  personal  jurisdiction  be  had,  so  far  as  possible,  in  all 
suits.  This  is  to  be  done  by  notice  in  some  manner  pre- 
scribed by  law.  A  proper  basis  for  the  notice  is  an  affidavit 
of  non-residence, (f)  since  this  alone  can  establish  the  fact 
on  which  the  right  to  issue  notice  by  publication,  for  exam- 
ple, rests,  because  a  resident  is  entitled  to  a  regular  summons 
personally  served.  Yet,  when  the  record  of  a  court  states 
that  the  required  notice  has  been  given,  it  will  be  presumed, 
when  the  question  arises  collaterally,  that  the  notice  so  passed 
upon  by  the  court  had  all  the  essential  requisites  to  give  per- 
sonal jurisdiction. («)  And  accordingly,  also,  one  who  would 
impeach  a  notice  by  publication,  on  the  ground  that  he  was 
a  resident,  has  the  burden  of  proof  on  him.(^;)  It  is  stated, 
as  a  general  rule,  that  where  there  is  a  legal  notice  or  publi- 
cation in  requisite  form,  or  whatever  a  statute  requires  in 
regard  to  matter  or  parties,  the  sufficiency  thereof  is  not  a 
subject  for  collateral  inquiry. (;t') 

(;^)State  v.  Chapin,  17  Ark.  ate  ;  (s)McVicker  c.  Beedy,  31  Me.  316. 

U.  S.  V.  Davis,  2  ^uIIm.  482:  People  (^Quman  ».  Allport,  65  111.  ;'42. 

«.  Adam.'^,  3  Denio,  207;   People  «.  (w)Logan  v.  Williams,  70  111.  182. 

Rathhurii,  21  Wend.  500.  (?;) Kitchen  v.  Crawford,  13  Tex. 

(7)!I;un   v.    State,   4  Tex.   Ct.   of  521. 

Appe.ds,  C45.  (w)Morrow   v.    Weed,   4    Clarke, 

(r)aen.  Stat.  266,  §$  1,  3.  (la.)  89. 


78  PARTIES. 

As  to  11011-rc'sident  defendauts,  the  supreme  court  of  Penn- 
sylvania say:  "It  will  be  seen  from  this  brief  review  that  it 
lias  not  been  the  policy  of  our  jurisprudence  to  bring  non-res- 
idents within  the  jurisdiction  of  our  courts,   unless  in  very 
special  cases.     In  proceeding  against    them  for  torts,  even 
property  belonging  to  them  cannot  be  reached  by  process,  and 
in  cases  of  contract  nothing  but  the  property  can  be  affected, 
imless  the  defendant  voluntarily  appear  and  submit  to  the 
jurisdiction.     We  may  congratulate  ourselves  that  such  has 
been  the  policy,  for  nothing  can  be  more  unjust  than  to  drag 
a  man  thousands  of  miles,  perhaps,  from  a  distant  state,  and, 
in  effect,  compel  him  to  appear  and  defend  under  the  penalty 
of  a  [personal]  decree  or  judgment  against  him  pro  confesso. 
There  exists  no  good  reason  why  courts  of  equity  should  be 
invested  with  a  more  enlarged  jurisdiction  against  non-resi- 
dents than  courts  of  law.     On  the  contrary,  as  trial  by  jury 
is  a  constitutional  right,  guarantied  to  strangers  as  to  our  own 
citizens,  the  inclination  should  be  in  a  contrary  direction. 
Though  it  be  an  undoubted  principle  that  wherever  a  court  of 
equity   has   jurisdiction  it  will  go  on   to   make   a   complete 
decree,  so  as  to  settle  the  entire  controversy  between  all  the 
parties,  it  would  be  an  extreme  consequence  from  that  prin- 
ciple to  hold,  as  we  are  asked  to  do  in  this  case,  that  any 
subject  of  propert}^  within  its  reach  will  give  it  jurisdiction  of 
the  person  of  a  non-resident  defendant,  so  as  to  authorize  a 
service  of  process  in  any  other  state  or  country,  and  to  enter 
a  personal  decree  against  him,  if  he  does  not  appear,  for  the 
payment  of  money.     Such  must  be  the  practical  consequences, 
if  the  contention  of  the  appellant  is  supported,  and  the  order 
of  the  court  of  common  pleas  of  Lycoming  county  held  suffi- 
cient to  bring  the  defendant  into  court  to  answer  the  appel- 
lant's bill.     A  defendant,  living  in  a  remote  state  or  foreign 
country,  charged,  by  a  bill  in  equity,  with  a  fraud,  the  dam- 
ages for  which  are  estimated  and  claimed  to  be  thousands  of 
dollars,  becomes  subject  to  this,  to  him,  foreign  tribunal,  not, 
let  it  be  remarked,  by  a  voluntary  appearance  in  a  case  where 
there  has  been  no  service,  but  by  service  of  process  upon  iiim, 
if  fifty  dollars  of  the  fruits  of  the  alleged  fraud  can  be  followed 


PARTIES.  79 

and  ear-marked  in  a  share  of  stock,  a  horse,  or  any  goods  or 
chattel.  A  construction  which  leads  logically  to  such  a  result 
cannot  he  sound,  and  would  require  that  the  legislature  should 
have  used  language  making  their  intention  unquestionable. 
It  would  be  to  impute  to  the  legislature  a  disregard  of  the 
most  important  principle  of  all  municipal  law  of  Anglo-Saxon 
origin  that  a  man  shall  only  be  liable  to  be  called  on  to 
answer  for  civil  wrongs  in  the  forum  of  his  home  and  the  tri- 
bunal of  his  vicinage,  though  his  property  may  be  subject  to 
the  .jurisdiction  of  the  courts  of  the  fcountry  where  it  may 
happen  to  be."(^-) 

§  89.  The  rule  is  not  essentially  different  in  regard  to  for- 
eign corporations,  which,  though  having  their  being  in  the 
state  creating  them,  may  yet  contract  and  be  recognized  in 
other  states,  and  hence  sue  and  be  sued  out  of  their  own 
states,  and  also  make  appearance  by  attorney,  and  thus  con- 
sent to  the  jurisdiction. (i/)  And,  when  it  has  thus  appeared, 
a  foreign  corporation  is  as  fully  within  and  subject  to  the 
jurisdiction  of  the  court  as  if  it  were  a  domestic  corporation. (;) 
Yet,  although  a  state  should  enforce  against  foreign  corpora- 
tions debts  due  its  citizens  in  the  same  manner  as  against 
individuals,  and,  also,  by  all  means  available,  protect  citizens 
against  fraud,  yet  this  does  not  empower  the  courts  to  regulate 
the  internal  affairs  of  foreign  corporations,  to  exercise  visitorial 
power  over  them,  enforce  a  forfeiture  of  their  charters  for 
misconduct,  or  remove  directors — all  which  things  exclusively 
belong  to  the  state  creating  the  corporation. (a)  And  also, 
accordingly,  no  equitable  relief  can  be  granted  against  a 
foreign  corporation,  having  neither  officers  nor  place  of  busi- 
ness in  the  state,  for  a  failure  to  declare  and  pay  dividends 
as  required  by  their  certificates  of  stock,  (i)  But  where  a 
corporation  establishes  an  agency  in  a  state  it  thereby 
becomes  amenable  to  the  laws  and  process  of  the  state,  where 
this  is  the  legislative  condition  on  which  the  agency  is  allowed 
to  be  established. (c) 

(.r)('oleman'sAppcal,75Pa.St.459.  (i)Willi.ston     v.    R.   R.  13  Allen, 

(.V)McCurmick«.R.R.49Jf.Y.3U9.  (Mass.)  4U6. 

(j)I)art  V.  Bank,  27  Barb.  343.  (c)Freucli  v.  Ins.  Co.  5   McLean, 

(«)IIowell  V.  R.  R.  51  Barb.  383.  466. 


so  PARTIES. 

And,  as  an  individual  can  waive  objection  to  the  jurisdic- 
tion by  appearing  in  the  action  to  give  notice  of  an  appeal, 
and  thereon  cannot  afterwards  object  to  the  want  of  jurisdic- 
tion, so  it  is  with  a  corporation,  (d)  And,  as  it  is  with  individ- 
uals, also,  there  can  be  no  personal  judgment  against  a  foreign 
corporation  in  proceedings  in  rem,  as  attachment ;  and  where 
goods  attached  are  insufficient  to  satisfy  a  judgment,  no  suit 
can  be  sustained  on  the  judgment  for  the  deficiency,  because 
the  defendant,  in  such  case,  is  not  personally  amenable  to 
the  court  rendering  the  judgment.  The  judgment  can  operate 
no  further  than  the  property  goes,  and  the  property  actually 
attached,  for  if  there  be  other  property,  not  attached,  no 
execution  can  be  issued  against  it  for  any  deficiency,  (e) 

Where  a  non-resident  plaintiff  sues  a  foreign  corporation, 
the  jurisdiction  cannot  be  maintained  unless  the  cause  of 
action,  or  the  subject  of  it,  arose  or  existed  within  the 
state. (_n     And  the  reason  is  quite  manifest. 

§  90.  In  equity,  where  a  defendant  resides  within  the  juris- 
diction of  the  court,  this  residence  gives  jurisdiction,  even  if 
the  cause  of  action  did  not  arise  therein,  nor  the  subject-mat- 
ter in  controversy  is  situated  therein.  So  decided  in  New 
York,  and  it  is  probably  the  general  rule. ((7) 

§  91.  It  is  the  record  party  who  gives  jurisdiction,  and  the 
court  will  not  look  beyond  him.  And  so,  in  a  case  where  a 
suit  was  brought  in  equity  to  compel  a  conveyance  of  lands, 
and  the  plea  was  interposed  that  the  defendant  had  no  per- 
sonal interest  in  the  lands,  but  was  only  a  trustee  for  the 
British  government,  and  that  this  fact  was  known  to  the  com- 
plainant when  suit  was  brought,  the  court,  on  demurrer,  held 
the  plea  admissible,  and  said:  "In  disposing  of  the  question 
thus  presented  it  is  not  necessary  for  us  to  decide  whether  a 
foreign  sovereign  could  be  sued  in  our  courts  upon  a  contract, 
entered  into  by  such  sovereign,  with  our  own  citizens;  nor 
whether,  where  such  a  sovereign  is  interested  in  real  estate 

(d)Fee  r.  Iron  Co.  13  Ohio  St.  565.  (/)Harriott  v.  R.  R.  2  Hilton,  (N. 

(e) Warren  Manuf.  Co.  «.  Ins.  Co.  Y.)  268. 

2  Paine  C.  C.  511 ;  Young  v.  Camp-  (^)Clasen  e.  Corley,  5  Sandf.  461. 
bell,  5  GU.  (111.)  83. 


PARTIES.  81 

within  this  state,  oni  courts  can  entertain  a  bill  in  equity,  to 
which  such  sovereign  is  made  a  direct  party,  for  the  purpus3 
of  adjudicating  the  rights  of  various  parties  in  the  property. 
The  question  here  is,  whether  a  suit  can  be  maintained  for  the 
adjudication  of  the  rights  of  different  parties  to  real  estate 
situated  in  this  state,  where  the  party  in  whom  the  title  stands 
on  the  public  records,  and  who  alone  is  made  respondent  in 
the  suit,  is  a  private  person,  but  who  in  fact  is  a  trustee  for  a 
foreign  sovereign.  On  this  j^oint  it  is  our  opinion  that  the 
jurisdiction  of  the  court  is  to  be  determined  by  the  character 
of  the  party  to  the  record,  and  is  not  affected  by  the  fact, 
though  brought  upon  the  record  by  the  pleadings,  that  the 
respondent  is  a  mere  nominal  party,  and  the  party  represented 
by  him,  and  having  the  real  interest,  is  beyond  the  jurisdic- 
tion of  court. "(/j) 

But,  as  to  a  party  complainant,  he  must  claim  the  right 
for  himself,  and  not  for  a  third  person  in  whose  title  he  has 
no  personal  interest,  or  the  court  will  not  exercise  jurisdic- 
tion.(/)  This  is  certainly  the  general  rule,  but  the  case  just 
cited,  wherein  this  was  decided,  was  disposed  of  by  a  di- 
vided court,  four  judges  dissenting  on  the  ground  that  a 
state  court  had  overruled  a  treaty  connected  with  the  title. 

And  it  has  been  held  that  if  a  suit  has  been  commenced  in 
a  United  Stat'^s  circuit  court,  by  one  acting  only  under  a  gen- 
eral or  assumed  authority  or  permission,  or  otherwise,  he 
having  no  interest  therein,  either  legal  or  equitable,  the  court 
has  no  personal  jurisdiction;  and,  if  such  suit  is  commenced 
without  authority,  it  cannot  afterwards  be  ratified,  even  by 
transferring,  subsequently,  the  interest  to  him  in  the  cause 
of  action.  And  so,  if  the  alleged  cause  of  action  be  an 
indorsed  note,  or  a  note  payable  to  bearer,  and  it  afterwards 
appears  that  the  note  was  not  actually  negotiated  to  him 
before  the  suit  was  commenced,  it  ousts  the  jurisdiction  of 
the  court,  without  remedy. (J)     So,  if  by  means  of  a  fictitious 

(A)Sharp.s'    Rifle  Manuf.    Co.    v.  (/)Henderson    «.    Tennessee,     10 

Rowan,  34  Conn.  329.    (See,  also,  4  How.  U.  S.  323. 

Cranch,  306  ;  8  Wheat.  738  ;  1  Pet.  (i)  Vase  v.  Morton,  4  Cusli.  32. 
122;  14  Pet.  293;  13  How.  574.) 
v.l— 6 


S2  PARTIES. 

co-defendant  one  is  drawn  into  the  jurisdiction  by  process, 
tlie  jurisdiction  cannot  be  sustained  unless  the  real'defend- 
ant  voluntarily  appears  to  the  action.  (A-) 

But  the  general  rule,  notwithstanding  these  apparent  excep- 
tions, is  undoubtedly  that  it  is  the  relative  situation  cf  the 
record  parties  which  gives  or  ousts  jurisdiction ;  and  where 
jurisdiction  depends  on  the  party,  it  is  the  party  named  on 
the  record.  (/)  The  exceptions  noted  go  only  to  the  length  of 
requiring  complainants  to  have  rights  to  be  enforced  by  the 
courts,  and  to  obtain  the  jurisdiction  by  ?>oua,^t/e  proceedings. 
And  the  reason  is,  that  they  invoke  the  jurisdiction  and  aid  of 
the  court.  Even  where  the  state  is  interested  in  a  suit,  but  is 
not  a  record  party  defendant,  the  jurisdiction  may  be  main- 
tained, notwithstanding  the  rule  that  a  state  cannot,  except 
on  consent,  be  sued  in  its  own  courts. (m) 

§  92.  Although  it  is  a  settled  rule  that  a  state  cannot  l)e 
sued  in  its  own  courts,  yet,  where  it  brings  suit,  as  it  is  enti- 
tled to  do,  in  a  civil  action,  the  defendant  has  the  right  to 
bring  in  a  set-off,  although  this  is  in  the  nature  of  a  cross- 
suit. (n)  However,  a  state  may  consent  to  be  sued  in  its  own 
courts,  as  the  United  States  has  done  in  its  court  of  claims. 

§  93.  A  consul  may  sue  in  the  state  courts,  although  not 
liable  to  be  sued  therein.  If  sued  therein,  however,  he  ma^^ 
waive  his  privilege,  not  only  expressly,  but  also  by  prosecut- 
ing an  appeal  to  the  supreme  court  to  reverse  the  decision 
below,  (o) 

§  94.  It  is  held  that  Indians  may  sue  or  be  sued  in  the 
state  courts. (jj)  But  where  there  is  a  statute  prohil)iting 
this,  of  course  it  is  otherwise,  as  in  the  state  of  New  York,  ((/) 
where  an  Indian,  if  sued,  need  not  plead  his  exemption. 
This  regulation  rests  on  the  idea  that  the  tribes  have  inde- 
pendent sovereignty;  an  idea,  the  prevalence  of  which  has 

(^•)Hendersoii?).  Kissam,  STex.54.  •   ((?)Koppel  v.   Heinrirhs,  1   Barb. 

(Z)Gill  V.  Stebbius,  2  Paine  C.  C.  452. 

417.  (;))S\vartzel    v.    Rogers,    3    Kaa. 

{m)  Michigan  State  Bank  v.  Hast-  377. 

ings,  1  Doug.  (la.)  237.  (7) Hastings  v.  Fanner,  4  Corns t. 

(?i)Coramonwealth  v.  Todd,  9  295. 
Bush,  714. 


PARTIES.  OO 

wrought  vast  mischiefs  in  our  governmental  dealings  with 
those  tribes.  Their  tribal  relations  ought  never  to  have  been 
recognized  as  a  political  fact. 

§  95.  In  New  York,  the  question  arose  whether  a  court  has 
power  to  arrest  proceedings  in  behalf  of  a  non-resident  plain- 
tiff, in  order  to  compel  him  to  appear  and  be  examined  as  a 
witness  in  the  cause,  at  the  demand  of  the  defendant.  It 
was  held — but  by  a  divided  court — that  the  power  did  not 
exist,  on  the  ground  that  "the  power  of  the  court  is  limited 
to  the  territory  of  the  state,  and  in  the  absence  of  any  statute 
undertaking  to  authorize  a  service  out  of  the  state,  the  ser- 
vice of  the  judge's  summons,  and  of  the  notice,  in  the 
state  of  Massachusetts,  must  be  deemed  to  have  been  utterly 
void  and  in8tfectual."(r) 

§  9o.  Officers  of  the  United  States  government  are  liable  to 
be  sued  in  the  state  courts  except  in  such  eases  as  are  espe- 
cially exempted  hj  the  national  constitution(.s)  and  acts  of 
congress. 

§  97.  The  manner  of  actual  service  and  return  is  purely 
statutory,  and  the  general  rule  is  that  statutes  prescribing 
such  manner  must  be  strictly  complied  with,  being  mandatory, 
and  not  directory;  with  some  exceptions,  however,  which  we 
have  previously  noticed,  based  on  the  principle  that  form 
must  give  wa}^  to  substantial  justice  when  necessary.  Accord- 
ingly, officers  are  allowed  to  amend  their  returns  when  this 
can  be  truthfully  done. 

(7')Appletoa«.  Appletou,5013arb.  (s)Crawford.  v.  Waterson,  S  Flor, 

486.  474. 


84  CONFEDERATE   SOLDIERS. 


CHAPTEE   XII. 

PARTIES    (continued) CONFEDERATE    SOLDIERS. 

5  98.  Judicial  results  of  the  civil  war. 

§  98.  In  the  preceding  chapter  the  general  rules  relating 
to  parties  passed  under  review.  But  our  civil  war  gave  rise 
to  many  questions  of  a  somewhat  peculiar  nature,  although 
resolvable,  in  the  main,  by  the  application  of  settled  rules. 
The  rights  of  Confederate  soldiers  under  judicial  proceedings 
were  exhaustively  adjudicated  in  an  elaborate  case  in  Ken- 
tucky, (a)  in  which  Judge  Lindsay  delivered 

THE    OPINION    OF    THE    COURT, 

"B.  G.  Thomas,  a  citizen  of  Kentucky,  residing  in  the  city 
of  Lexington,  some  time  in  the  early  part  of  the  year  1862, 
became  embroiled  in  an  unfortunate  difficulty  with  a  soldier 
of  one  of  the  regiments  of  United  States  troops  then  sta- 
tioned at  that  place,  and  was  finally  comi^elled,  in  necessary 
self-defence,  to  kill  the  soldier.  The  act  was  held  to  be 
excusable  by  both  the  civil  and  military  authorities,  but  the 
comrades  of  the  soldier  were  so  much  incensed  that  they 
openly  announced  their  intention  to  avenge  his  death,  and 
made  repeated  attempts  to  execute  their  threats.  Their  offi- 
cers either  could  not,  or  would  not,  restrain  them,  and  it 
eventually  became  necessary  that  Thomas  should  virtually 
abandon  his  business  to  escape  the  impending  danger. 

"While  affairs  were  in  this  condition  the  southern  army, 
under  General  Bragg,  advanced  into  Kentucky,  and  occupied 
the  city  of  Lexington.  During  its  occupation  Thomas  re- 
mained at  home;  but  a  day  or  two  after  it  was  abandoned 
by  the  retiring  Confederates,  and  before  the  Federal  army 

(a)Thomas   v.    JNlahone,  9   Bush,  114. 


CONFEDERATE    SOLDIERS.  85 

resumed  possession  be  started  south,  and  some  time  in  the 
month  of  November,  1862,  be,  being  then  in  the  state  of  Ten- 
nessee, joined  the  Confederate  army. 

"On  the  fifth  of  November,  1862,  Rufus  Lisle,  a  creditor  of 
Thomas,  brought  his  suit  in  the  Fayette  circuit  court,  and 
sued  out  orders  of  attachment  against  bis  property,  on  the 
grounds  that  he  had  left  the  county  of  his  residence  for  the 
purpose  of  joining,  and  bad  joined  and  entered  into,  and  was 
then  in,  the  service  of  the  so-called  Confederate  States,  and 
that  he  bad  removed,  and  was  about  to  remove,  a  material 
part  of  his  property  out  of  Kentucky,  not  leaving  enough  to 
pay  bis  debts.  The  real  and  personal  property  of  Thomas, 
situated  or  found  in  Fayette  county,  was  shortly  thereafter 
seized  by  the  sheriff. 

"On  the  fourteenth  of  December,  James  and  Mansfield  also 
filed  their  suit  to  enforce  the  collection  of  certain  notes  held 
by  them  as  assignees  of  Jackson,  the  payment  of  which  was 
secured  by  a  vendor's  lien  on  a  tract  of  about  one  hundred 
acres  of  land,  situated  near  the  city  of  Lexington,  and  pur- 
chased by  Thomas  from  said  Jackson.  They  also  procured 
an  order  of  attachment  upon  the  alleged  ground  that  their 
debtor  bad  voluntarily  left  the  county  of  bis  residence  and 
gone  within  the  lines  of  the  Confederate  army,  and  there  vol- 
untarily remained  for  more  than  thirty  days.  In  both  these 
suits  the  land  in  question  was  attached,  and  in  each  of  them 
orders  of  warning  against  the  absent  defendant  were  made. 

"In  February,  1863,  the  two  suits  were  consolidated  and 
a  judgment  rendered,  directing,  amongst  other  things,  the 
sale  of  so  much  of  the  tract  of  land  already  mentioned 
as  might  be  necessary,  the  proceeds  therefrom  to  be  ap- 
plied, first,  to  the  satisfaction  of  the  lien  notes  held  by 
James  and  Mansfield,  and  then  to  the  payment  of  such  bal- 
ance as  might  remain  unpaid  on  the  claim  of  Lisle  after  the 
sale  of  the  personal  property.  Under  this  judgment  the  en- 
tire tract  was  sold,  the  appellee,  Mahone,  purchasing  it  for 
the  sum  ot  $10,613.  The  sale  was  confirmed,  and  with  the 
sanction  and  approval  of  the  court  a  conveyance  to  Mahone 


86  CONFEDEKATE   SOLDIERS. 

was  executed  by  the  slierifif  (who  acted  as  the  court's  com- 
missioner) on  the  seventeenth  of  June,  IS 64. 

"Shortly  after  the  termination  of  the  civil  war  Thomas 
returned  to  his  home,  and  on  the  twenty-first  of  April,  1870, 
instituted  this  suit,  seeking  to  have  the  judgment,  and  sale, 
imder  which  Mahone  claims  title  to  the  land,  declared  void, 
the  land  restored  to  his  possession,  and  judgment  for  such 
amount  as  might  be  found  due  him  after  an  account  for  rents 
and  improvements  should  be  rendered.  He  alleges  that  at  the 
time  of  the  proceedings  resulting  in  the  sale  of  his  land  he 
was  kept  away  from  his  home,  and  prevented  from  making 
defence,  by  the  lawless  condition  of  the  country,  and  the  ina- 
bility of  the  civil  and  disinclination  of  the  military  authorities 
to  protect  him  from  threatened  assassination;  that  Xfahone, 
the  purchaser  of  his  land,  had  contributed  to  bring  about  the 
condition  of  lawlessness  then  prevailing,  and  was  thereby 
indirectly  responsible  for  his  (appellant's)  enforced  absence; 
that  the  levies  of  the  orders  of  attachment  were,  as  matter  of 
law,  void,  because  of  the  failure  of  the  officer  to  comply  with 
the  law  in  making  them,  and  because  the  land  was  at  the 
time  in  the  actual  possession  of  the  military  authorities  of  the 
United  States,  and,  therefore,  not  subject  to  seizure  by  the 
officer  of  the  state  court;  that  the  military  authorities  intim- 
idated bidders,  and  prevented  competition  at  the  sale;  that 
this  fact  was  a  matter  of  public  notoriety,  and  was  well  known 
to  the  purchaser,  who  took  advantage  of  the  circumstance  to 
bid  in  the  land  at  greatly  less  than  its  actual  value;  that  the 
premises  were  in  the  actual  possession  of  the  military  when 
sold;  and,  finally,  that  the  judgment  was  void  for  want  of 
jurisdiction  in  the  court — it  not  having  power,  because  of 
its  belligerent  character,  and  by  reason  of  his  absence  within 
the  lines  of  a  hostile  government,  to  bring  him  before  or  into 
court  by  constructive  service. 

"No  appeal  was  prosecuted  from  the  original  judgment, 
confirming  the  sale  of  the  land,  nor  did  appellant,  within  five 
years  after  either  of  these  judgments,  enter  his  appearance, 
and  move  for  a  retrial  of  the  issues  settled  by  either,  as 


CONFEDERATE    SOLDIERS.  87 

authorized  by  section  445  of  the  Civil  Code  of  Practice.  Nor  is 
this  action  in  the  nature  of  a  bill  of  review.  It  is,  in  every 
essential,  a  collateral  proceeding,  seeking  no  correction  of 
errors,  and  asking  no  relief,  except  that  the  original  proceed- 
ings shall  be  absolutely  ignored. (6)  Such  being  the  case,  it 
is  not  necessary  that  we  should  direct  our  attention  to  any  of 
the  grounds  set  up  in  the  petition,  which  wall  not  of  them- 
selves, or  in  connection  with  others,  authorize  us  to  con- 
clude that  the  judgment  or  the  sale,  or  both,  were  and  are 
utterly  null  and  void. 

"That,  in  1862,  the  civil  authorities  of  Fayette  county 
were  not  able  to  jarotect  appellant  from  the  soldiery,  and  that 
the  military  officers  did  not  afford  him  protection,  is  suffi- 
ciently proved;  yet  the  hostility  toward  him  seems  not  to 
have  extended  beyond  the  friends  and  comrades  of  the  man 
who  had  been  killed,  and  it  is  certain  he  remained  at  home, 
notwithstanding  the  apprehended  danger,  until  the  command 
to  which  these  soldiers  belonged  was  compelled  to  withdraw 
from  Lexington  by  the  advance  of  the  southern  troops.  He 
started  south  at  a  time  when  he  was  in  no  immediate  danger, 
and  when  he  hcA  no  sufficient  reason  to  anticipate  the  return 
to  Lexington  of  the  hostile  soldiers,  if,  indeed,  they  ever  did 
return.  But,  even  if  prudence  diclnted  that  he  should  secure 
his  personal  safety  by  leaving  his  home,  he  could  have 
secured  this  security  as  well  within  as  without  the  Federal 
lines.  We  are  constrained  to  conclude  that  while  he  would 
have  preferred  to  remain  at  home,  if  he  could  have  been 
assured  that  he  would  be  permitted  to  do  so  without  further 
molestation,  it  was  his  sympathy  for  the  southern  cause,  and 
not 'fear  of  the  soldiery,  that  induced  him  to  go  south. 

"Appellant's  absence  within  the  Confederate  lines  was  not 
that  character  of  enforced  absence  which,  in  the  case  of 
Dean  v.  Nelson,  10  Wall.  158,  was  held  by  the  supreme  court 
of  the  United  States  to  render  void  the  order  of  publication 

(^')Certainly  this  is  an  inadvertent  validity  of  the  judgments,  and  has 

declaration  of  the  court.     How  can  no  other  view  than  to  set  aside  the 

that  be  a  "colhittrnl  proceeding,"  judgments  and  all  proceedings  un- 

■which  is  a  direct  assault  on  the  der  them?     I  cannot  see. 


88  CONFEDERATE    SOLDIERS. 

b}'  which  the  civil  commission,  sitting  at  Memphis,  attempted 
to  acquire  jurisdiction  of  the  persons  of  Nelson  and  his  wife. 
Thej^  had  been  expelled  from  the  Union  lines  by  the  military 
commander,  and  were  not  allowed  to  return,  and,  therefore, 
could  not  have  obeyed  the  order  of  publication,  even  if  it  had 
been  brought  to  their  notice. 

"There  is  nothing  in  the  record  before  us  authorizing  the 
conclusion  that  Mahone  was  resj)onsible  for  the  lawlessness 
complained  of  by  Thomas,  nor  that  he  personally  contributed 
to  bring  about  that  disregard  by  the  military  of  law  and 
order  which  it  is  insisted  prevailed  in  Lexington,  in  1862, 
and  afterwards.  This  court  cannot  recognize  and  act  upon 
the  idea  that  there  is  a  general  equity,  growing  out  of  the 
disturbed  condition  of  KentucKy  during  the  iate  civil  war, 
which  converts  into  trustees  those  who  purchased  property 
at  judicial  sales  during  that  period.  To  uphold  such  a  doc- 
trine would  be  to  practically  reopen  all  the  litigation  settled 
by  the  courts  during  that  unhappy  epoch  of  our  country's 
history. 

*  *  *  "We  are  of  opinion  that  the  premises  were  sub- 
ject to  attachment  notwithstanding  the  Federal  government 
had  upon  them  at  the  time  a  military  encamj^ment.  The 
occupation  of  the  military  was  merely  temporar}'.  The  gen- 
eral government  asserted  no  claim  to  the  land  actually  occu- 
pied, and  had  done  nothing  indicative  of  an  intention  to 
seize  and  permanently  hold  the  premises  in  the  furtherance 
of  military  operations.  Although  the  officer  of  the  state 
could  not  force  his  way  within  the  guard-lines  of  a  military 
encampment,  yet  the  occupation  of  the  army  was  not  so  exclu- 
sive as  to  prevent  him  from  doing  such  acts  as  the  law 
required  to  be  done  to  put  the  court  in  constructive  possession 
of  the  land,  and  this  was  all  that  was  necessary  to  perfect 
the  attachment  liens.  If  it  is  true,  as  charged,  that  Warner, 
to  whom  the  deputy  sheriff  delivered  copies  of  the  orders  of 
attachment,  was  a  Federal  officer,  it  is  equally  clear  that  he 
recognized  the  right  of  the  deputy  to  make  the  levies,  and, 
it  seems  from  the  testimony  of  appellant's  witness,  (Merrill,) 
held  p  jssession  of  the  dwelling  under  the  officer  of  the  state 


CONFEDERATE    SOLDIERS.  89 

court,  and  surrendered  it  to  the  officer  at  the  decretal  sale. 
The  seizure  by  the  state  court  did  not  interfere  with  tho 
encampment  of  the  Federal  troops  and  the  concurrent  posses- 
sion of  the  state  court,  and  the  troops  were  in  no  wise  incon- 
sistent with  the  rights  of  either.  We  do  not  regard  the  tem- 
porary encampment  established  on  appellant's  farm  as  such 
a  possession  by  the  Federal  government  as  to  compel  the  pro- 
cess of  the  state  court  to  pause  until  the  encampment  was 
discontinued.  There  is  no  analogy  between  the  facts  involved 
in  this  and  in  the  cases  of  Harris  v.  Denny,  3  Pet.  292,  and 
Amy  V.  Supervisors,  11  Wall.  138. 

*  *  *  "The  only  remaining  questions  necessary  to  be 
noticed  are — First,  could  the  Fayette  circuit  court  entertain 
jurisdiction  of,  and  render  judgment  in,  an  action  prose- 
cuted against  Thomas  while  he  was  a  soldier  in  the  Confed- 
erate States  army;  and,  second,  did  the  orders  of  warning 
sued  out  against  him  have  the  legal  effect  of  constructive 
service  of  process? 

"It  does  not  follow,  because  appellant  was  at  the  time  a 
soldier  in  the  army  of  a  belligerent  power,  and  that  all  un- 
licensed communication  with  him  by  the  people  of  the  states 
adhering  to  the  Federal  Union  was  inhibited,  not  only  by  the 
laws  of  war,  but  by  express  statute,  that  resident  creditors 
might  not  sue  him  in  the  courts  of  this  state,  and  subject  to 
the  payment  of  their  debts  such  of  his  property  as  might  be 
found  within  the  local  jurisdiction  of  the  court  in  which  he 
was  sued.  The  right  of  resident  creditors  to  so  proceed 
against  parties  indebted  to  them,  residing  within  the  lines  of 
this  hostile  power,  and  held  to  be  public  enemies  by  reason 
of  their  participation  in  the  southern  movement,  was  recog- 
nized by  the  Federal  congress  in  the  act  of  March  3,  1863, 
(2  Brightley's  Digest,  1238,)  providing  for  the  seizure  and 
confiscation  of  the  propert}^  of  such  persons.  In  the  case  of 
Crutcher  v.  Herd  and  Wife,  4  Bush.  362,  this  court  held  that  a 
proceeding  by  a  Kentucky  creditor  to  enforce  his  lien  on  land 
situated  in  this  state  was  not  interdicted,  notwithstanding 
the  existence  of  the  war,  and  the  residence  of  the  debtor 
within  the  Confederate  lines.     And  in  the  case  of  Biirnam  v. 


90  CONFEDERATE    SOLDIERS. 

Comiiionweidth,  1  Duvall,  210,  an  act  of  the  legislature  author- 
izing suits  against  the  members  of  the  provisional  government 
of  Kentack}^  for  the  recovery  of  public  revenues  seized  by 
them  or  those  claiming  to  act  under  them,  and  the  rendition 
of  personal  judgments  upon  constructive  service,  was  declared 
to  be  liable  to  no  constitutional  objection,  although  it  was 
applied  to  persons  whose  absence  from  the  state  within  the 
Confederate  lines  was  as  notorious  as  was  the  additional  fact 
that  they  were  engaged,  when  the  act  was  passed,  (March  15, 
18(33,)  in  giving  active  aid  and  encouragement  to  the  hostile 
government  of  the  south.  If  the  state  could  authorize  such 
proceedings  in  its  own  behalf,  without  contravening  the  war 
policy  of  the  general  government,  or  infringing  upon  its  war 
powers  under  the  Federal  constitution,  it  is  clear  that  it  could 
provide  the  same,  or  similar  remedies,  for  its  citizens.  Such 
has  all  the  while  been  the  opinion  of  this  court,  as  is  mani- 
fested by  its  action  in  the  cases.  2  Duvall.  288,  480 ;  1  Bush. 
4G7 ;  2  r3ush.  201 ;  4  Bush.  498,  and  numerous  others.  Even 
if  a  citizen  of  Kentucky,  who  joined  the  Confederate  army, 
became  thereby  invested  with  the  character  of  an  alien  enemy, 
as  is  insisted  by  appellant,  it  is  by  no  means  clear  that  his 
property  in  Kentucky  could  not  be  lawf  ulh*  seized  b}-  its  courts, 
and  subjected  to  the  payment  of  his  debts.  The  supreme 
court  of  the  United  States,  upon  the  authority  of  a  case  in 
the  English  court  of  exchequer,  cited  in  the  case  of  Albrecht  v. 
Snssnum,  2  Vesey  &  Beavens,  324,  and  the  doctrine  enun- 
ciated in  Bacon's  Abridgment,  title  'Alien,  D,'  and  in  the  53d 
section  of  Story's  Equity  Pleadings,  decides,  that  'whatever 
ma}'  be  the  extent  of  the  disability  of  an  alien  enemy  to  sue 
in  the  courts  of  the  hostile  countrj^  it  is  clear  that  he  is  lia- 
ble to  be  sued.'  McVeigh  v.  U.  S.,  11  Wall.  259.  The  juris- 
diction of  the  courts  of  Tennessee  to  sell  the  lands  of  one  of 
her  citizens,  who  had  left  his  home  and  become  a  participant 
in  the  war  being  waged  against  the  United  States  by  the  Con- 
federates, was  directly  called  in  question  in  the  case  of  Lnd- 
loiv  V.  Ramsay,  11  Wall.  581,  and  upheld  by  the  supreme 
court. 

"The  judgment  in  the  case  of  Dean  v.  Nelson  was  declared 


CONFEDERATE    SOLDIERS.  91 

void  because  the  defendants  were  uot  permitted  by  the  mili- 
tary commamler  to  return  to  Memphis  and  make  defence. 
Under  the  circumstances,  the  order  of  publication  was  held  to 
be  an  idle  form,  not  on  account  of  Nelson  and  his  wife  being 
public  enemies,  and  therefore  not  liable  to  be  sued,  but 
because  the  militar}-  would  neither  allow  them  to  see  nor  ta 
^bey  it.  So  far  as  the  civil  or  military  authorities  in  Ken- 
tucky were  concerned,  Thomas  could  have  returned  and 
resumed  his  status  as  a  non-combatant  citizen  at  any  time ; 
but  he  did  not  choose  to  do  so  upon  the  terms  prescribed. 
We  are  satisfied  that  the  power  of  the  courts  of  the  states 
adhering  to  the  Federal  Union  to  entertain  jurisdiction  of 
suits  against  such  of  their  citizens  as  joined  in  the  Confeder- 
ate army  is  upheld  by  the  decided  weight  of  authority. 

*  *  *  "As  persons  serving  in  the  Confederate  army,  or 
adhering  to  the  Confederate  cause,  could  be  lawfully  sued,  the 
constructive  notice  necessary  to  give  the  courts  jurisdiction 
to  render  judgments  in  suits  instituted  against  them  was  a 
question  of  legislative  discretion,  and  not  of  power.  As  the 
act  [authorizing  constructive  service]  was  intended  to  apply 
to  belligerents,  to  persons  who  were  within  the  lines  of  the 
public  enemy,  the  fact  that  attorneys  appointed  to  defend 
could  not  lawfully  communicate  with  them  does  not  render 
void  the  judgments  in  such  actions. 

*  *  *  "The  warning  orders,  resulting  in  the  judgments 
by  virtue  of  which  appellant's  land  was  sold,  were  based  upon 
the  alleged  ground  that  he  had  departed  from  the  county  of 
his  residence  and  voluntarily  gone  and  continued  within  the 
military  lines  of  the  Confederate  States.  The  evidence  estab- 
lishes the  truth  of  these  allegations.  It  does  not  matter  that 
Thomas  remained  at  home  until  the  advance  of  Bragg's  troops 
brought  him  within  the  lines  of  the  invading  army.  He  con- 
tinued a  non-combatant  citizen  of  Kentucky  until  the  confed- 
erates left  Lexington  on  their  retreat  from  the  state.  Whether 
his  remaining  at  home  until  the  day  after  the  southern  troops 
had  retired  brought  him  again  within  the  advancing  lines  of 
the  Federals,  or  whether  his  home  continued  constructively 
"within  the  southern  lines  until  the  Union  troops  actually  re- 


02 


CONFEDERATE    SOLDIERS. 


occupied  the  country,  we  do  not  deem  it  necessary  to  decide. 
He  left  his  home  when  there  was  no  public  enemy  present  to 
interfere  with  the  execution  of  the  process  of  the  courts,  and, 
by  voluntarily  continuing  absent  and  within  the  hostile  lines, 
he  forced  his  creditors  to  resort  to  the  remedies  provided  by 
a  law  enacted  long  before  he  was  in  anywise  connected  with 
the  Confederate  army.  His  action  brought  him  within  the 
letter  as  well  as  the  spirit  of  the  law,  construing  it  strictly 
and  confining  its  operations  within  the  narrow  limits  insisted 
upon  by  his  learned  counsel." 

I  have  given  this  opinion  almost  wholly  because  of  its  con- 
taining a  pretty  full  summary  of  the  authorities  on  the  doc- 
trine involved.  When  we  come  to  treat  specifically  of  the 
United  States  courts,  we  shall  have  some  other  questions  in 
relation  to  parties  to  consider,  as  also  when  treating  of  spe- 
cific jurisdictions  in  the  state  courts.* 


*lt  may  here  be  remarked  that 
some  states,  as  Kansas,  Nebraska, 
and  New  York,  have  provided 
for  the  actual  service  of  a  summons 
in  another  state  precisely  as  it  is 
served  within  the  state.  But  I  do 
not  think  one  state  can  be  author- 
ized thus  to  reach  into  another  ju- 
risdiction; although  provision  may 
be  made,  as  in  Illinois,  for  serving 
a  summons  on  a  defendant  in  an- 
other county,  in  cases  where  an- 
other Joint  defendant  is  in  the 
county  where  the  suit  is  instituted. 


See  Wallace  v.  Cox,  71  111.  548.  In 
Iowa  notice  may  be  given  to  a  non- 
resident by  serving  a  copy  of  a  judg- 
ment rendered  against  him ;  and  then 
the  non-resident  may  apply  for  a 
new  trial  within  six  months.  But 
the  judgment  cannot  be  a  personal 
one.  In  some  states  copies  of  bills  in 
chancery  may  be  served  in  actions 
in  rem,  and  then  the  decree  will  be 
at  once  conclusive  as  to  the  prop- 
erty involved.  But  personal  equity 
proceedings  cannot  be  established 
in  that  way,  I  judge. 


JURISDICTION    DETERMINED    BY    VALUES.  93 


CHAPTEE  XIII. 

JURISDICTION   DETERMINED   BY   VALUES. 

?  99.  Various  limitations. 

100.  How  limitation  by  value  is  estimated. 

101.  Unbalanced  account. 

102.  Remitting  excess. 

103.  Consolidation  of  claims. 

104.  Value  in  ejectment  suits. 

105.  Ad  damnum  clause. 

106.  Values  in  crimes  and  torts. 

107.  No  waiver  as  to  jurisdiction  measured  by  value. 

108.  Set-offs. 

109.  Aggregating  claims  in  declaration. 

110.  Various  mortgage  claims. 

111.  Purchase  price  of  property  involved  is  not  the  standard. 

§  99.  There  are  many  ways  in  which  the  jurisdiction  of 
even  superior  and  appellate  courts  may  be  limited,  whether 
in  regard  to  subject-matter,  as  law,  equity,  admiralty,  pro- 
bate, appeals,  original  proceedings,  civil  or  criminal  cases, 
special  subjects,  etc.,  or  in  regard  to  other  matters,  as  to 
single  judges,  or  courts  having  more  than  one  judge,  special 
qualifications  of  judges,  territorial  limits,  particular  times 
and  modes,  particular  classes  of  persons  as  parties,  modes  of 
procedure,  etc. (a)  A  limitation  by  the  amount  in  contro- 
versy is  a  common  one,  and  is  the  subject  of  the  current 
chapter.  It  may  prevail  in  equity  courts  as  well  as  in  law 
courts.  Gamher  v.  Halheti,  5  Mich.  335.  And  so,  where  an 
action  is  brought  to  enjoin  a  judgment,  the  amount  of  the 
judgment  is  the  standard.  Gushing  v.  Sambold,  30  La.  An. 
426. 

§  100.  The  first  inquiry  is  as  to  the  mode  of  estimating  the 
amount  prescribed  as  the  statutory  limitation.     It  is  the  gen- 

(a)See  6  Foeter,  (N.  H.)  240,  and  cases  there  referred  to. 


94  JURISDICTION    DETERMINED    BY    VALUES. 

era!  rule  that  inasmuch  as  the  verdict  is  hoth  unknown  at 
the  commencement  of  the  suit,  and  cannot  be  known  until 
after  jurisdiction  has  been  taken,  the  amount  actually  ren- 
dered therein  cannot  be  a  proi^er  standard,  as,  for  example, 
"where  the  limitation  is  ijiiiiinitiin,  requiring  the  court  to  refuse 
cognizance  of  sums  below  a  particular  amount,  and  the  ver- 
dict renders  less  than  the  amount,  or  extinguishes  the  plain- 
tiff's claim  altogether,  it  would  surely  be  a  practical  absurdity 
to  relinquish  jurisdiction  thereupon.  It  may,  of  course,  de- 
termine the  controversy,  or  the  respective  rights  of  the  par- 
ties, but  not  what  the  amount  of  the  original  controversy 
was,  unless  it  be  a  finding  on  a  plea  of  abatement  as  to  the 
jurisdiction. (/))  However,  it  must  not  on  verdict  appear  that 
the  amount  v^-as  fraudulently  laid  in  order  to  give  jurisdiction; 
and,  in  North  Carolina,  it  has  been  held  that  a  smaller  yer- 
dict  is  prlijia  facie  evidence  of  an  evasion  as  to  jurisdiction, 
to  be  overcome  only  by  an  affidavit  of  good  faith  by  the  plain- 
tiff, (c)  And  it  seems  tliat,  in  an  action  on  a  book  account, 
proof  that  the  debtor  side  of  the  account  is  less  than  the 
requisite  amount  wall  oust  the  jurisdiction  absolutely.  So  held 
in  Vermont,  (cZ)  perhaps  on  the  ground  of  a  conclusive  pre- 
sumption of  fraud.  An  attempted  evasion  will  vitiate  when 
it  appears.  Fcnn  v.  Harrington,  54  Miss.  733.  But  where 
the  claim  is  made  in  good  faith,  it  is  the  amount  set  up  in 
the  declaration  which  determines  the  jurisdiction. (e)    Ahney  v. 

(6)Hilmaii     v.     Martin,   2    Pike,  does  not  show  affirmatively  a  juris- 

(Arli.)  170;   Tarbox  v.   Kennan,  3  dictional  amount.     The  fact  of  a 

Tex.    8;    Sherwood   v.   Douthit,    6  defect  in  the  amount  may  be  set  up 

Tex.  224;  Ellett  «.  Powers,  8  Tex.  by   answer  or  plea.     Abraham  «. 

113 ;  Griffin,  Adm'r,  v.  Lomer,  37  Hall,  59  Ala.  386. 

Miss.    458 ;    Pennebeoker    v.    Me-  (c)  Johnson  v.  Francis,  13  Ired.465. 

Dougal,  48  Cal.  161.  (f7)Paul  v.  Benton,  32  Vt.  155. 

In  Vermont  it   is  held  that  the  («)Muns  «.  Dupont,  2  Wasli  C.  C. 

belief  of   the  plaintiff  may  be   the  463;  4   J.  J.  Marshall,    (Ivy.)  242; 

standard  as  to  a  minimum  amount.  Singleton  «.  Madison,  1  Bibb.  343; 

(Field  V.  Randall,  51   Vt.  33;)  al-  Wightman  «.  Carlisle,  14  Vt.  2!)s  ; 

though  the  amount  must  ahvaj-s  be  Odell  v.  Culbert,  9  Watts  &  Scrg. 

ascertainable,  and  jurisdiction  will  (Pa.)   66;    Hapgood   «.   Doherty,  S 

not  be  assumed  on  a  mere  inference.  Gray,  374;    Murrill   v.    Butler,   IS 

Wade  «.  Loudon,  30  La.  An.  660.  Mich.   291;    Solomon  v.   Reese,  34 

Yet  it  is  held  in  Alabama  that  a    '  Cal.  33  (overruling  Votan  «.  Reese, 

bill  is  not  demurrable  because  it  20  Cal.  90.) 


I 


JURISDICTION    DETERMINED    BY    VALUES.  95 

Wldtted,  28  La.  An.  818.  And  hence  it  is  a  matter  of  judicial 
notice.  Dartez  v.  Lege,  Id.  G40.  But  in  New  York,  as  affect- 
ing the  question  of  costs,  the  recovery  is  the  standard  of  esti- 
mation, and  a  phxintifif  is  not  allowed  to  oust  jurisdiction  by 
demanding  an  excessive  sum,  so  as  to  entitle  himself  to  full 
costs  in  a  superior  court  on  the  recovery  of  a  small  sum, 
.  Poicers  V.  Gross,  66  N.  Y.  640.  And  this  ap.pliesto  a  contest 
for  an  ofiice;  the  salary  gives  the  jurisdiction  in  some  states. 
State  ex  rel.  v.  De  Vargas,  28  La.  An.  342. 

An  unintentional  mistake  in  figures  in  an  account  v/ill  not 
oust  jurisdiction,  even  though  the  correction  of  the  error  dis- 
covered on  the  trial  reduces  the  claim  below  the  jurisdictional 
standard,  "In  such  cases  the  jurisdiction  of  the  court  would 
be  no  more  affected  by  such  error  than  it  would  be  by  the 
disallowance,  on  trial,  of  a  portion  of  a  claim,  which,  in  the 
aggregate,  was  within  the  jurisdiction  of  the  court,  for  any 
other  cause  or  reason.  The  criterion  is,  the  amount  of  the 
matter  in  demand,  as  distinguished  from  the  amount  recov- 
€red,"(/) 

Whether  interest,  or  damages,  or  costs  must  be  counted  in 
when  estimating  the  amount  of  the  demand,  has  been  vari- 
antly  decided;  but  it  is  now  settled,  doubtless,  that  interest 
is  to  be  computed  on  a  certain  claim,  but  not  costs.  Dam- 
ages, however,  are  certainly  to  be  computed,  these  being  part 
of  the  demand. (^r)  However,  interest  accruing  after  action 
begun  cannot  be  taken  into  the  estimate,  (/i)  nor  indeed  any 
fact  strictly  subsequent,  as  we  have  seen  in  a  previous  chap- 
ter.   Damages  may  be  disregarded  in  California.     22  Cal.  468. 

§  101.  Where  an  account  is  unbalanced,  the  amount  is  the 
debit  side.  But  where  balanced,  it  is  the  amount  due  on  the 
settlement  which  determines    the  jurisdiction. (i)     And    the 

(/)Scott  V.  Moore,  41  Vt.  210.  565  ;  Butler  v.  Wagner,  35  Wis.  55  ; 

(/j'jSce  Fisher    v.    Hall,   1    Pike,  VanGuisen  «.Van  Houten,  2  South, 

(Ark.)  275;  Grant  ».  Lams,  7  Mon.  (N.  J.)  822,  contra,  costs  not  esti- 

(Ky.)  221;  Inhab.,  etc.,  v.  Weir,  9  mated;    Oglesby  v.   Helm,   2G  La. 

Ind.  22 ;  Solomon  v.  Reese,  34  Cal.  An.  61. 

32,  as  to  excluding  interest,    etc,  (7t)Trego  v.  Lewis,  58  Pa.  St.  460. 

and  Paul  v.  Arnold,  12  Ind.   108;  (iJ)Willard  «.  Collamer,34  Vt.  597.. 
SchJenker  v.  Talialerro,  20  La.  An, 


OG  JURISDICTION    DETERMINED    BY    VALUES. 

principle  is  the  same  with  regard  to  payments  made  on  a 
definite  claim.  The  balance  settles  the  question  of  jurisdic- 
tion— the  payment  being  made  before  suit,  and  with  refer* 
euce  to  in'mimum  as  well  as  maximum  limitations. (^/) 

§  102.  There  is  no  good  reason  why  a  plaintiff  may  not 
remit  any  excess  over  a  jurisdictional  amount  in  order  to 
bring  a  claim  within  the  reach  of  a  court.  And  so,  although 
one  has  no  right  to  divide  up  a  book  account  and  sue  upon  it 
by  piecemeal,*  yet  he  may  remit  by  credit. (A)f  And  even  an 
accidental  remitting  will  save  the  jurisdiction  and  operate  as 
a  credit  for  the  excess.  (/)  And  wliere  a  note  in  suit  is  filed 
with  the  declaration,  and  the  debt  thereon  is  beyond  the  juris- 
diction, but  the  declaration  only  claims  a  competent  amount, 
the  jurisdiction  may  be  sustained,  under  a  statute  assigning 
the  amount  "claimed"  as  the  basis  of  the  authority  of  the 
court  to  adjudicate. (m) 

§  103.  As  to  the  consolidation  of  claims  in  order  to  confer 
jurisdiction,  the  matter  has  been  variantly  decided.  It  is 
very  emphatically  condemned  by  some  courts,  but  allowed  by 
others.  And  it  seems  quite  reasonable  where  there  are 
several  claims  which,  according  to  the  rules  of  j^leading,  can 
be  properly  consolidated  in  a  suit  by  including  them  in  the 
same  declaration,  to  combine  the  amounts,  as  to  the  question 

(j) Watts  V.  Harding,  5  Tex.  388  ;  Pennsylvania  court  pointedly  and 

Ausley  v.  Alderman,  Pliill.  (X.  C.)  emphatically  forbids  it.     Peter  ». 

21-6.  Sclilosser,  81  Pa.  St.  439.    But  if  in- 

*That  is,  the  same  account  cannot  terest  has  accrued  after  suit  com- 
be divided.  But  different  accounts,  menced,  so  as  to  carry  it  beyond 
or  different  acceptances,  being  dis-  jurisdiction,  the  jurisdiction  is 
tinct,  can  be  separately  sued  on.  not  ousted  thereby,  and  judgment 
Frank  v.  Lee,  51  Miss.  101.  A  bill  can  be  entered  for  the  whole 
of  goods  purchased  in  one  day  is  amount.  Bell  v.  Ayres,  44  Conn, 
entire.  Magruder  v.  Kandoiph,  77  35.  Georgia  forbids  an  optional 
N.  C.  79.  credit.     Cox  v.  Stanton,  58  Ga.  406. 

(^•)Fuller  V.  Sparks,  39  Tex.  136.  (/jAlexander    ».    Thompson,    3S 

tSo,  a  plaintiff  may  wa'.ve  inter-  Tex.  535. 

est  to  reduce  the  sum  claimed  to  (/rt)Willielms    v.   Noble,   36    Ga. 

the  jurisdictional  limit.     Wright  o.  601.     For   the  right   to   remit   see 

Smith,  76  111.  216.     And  I  am  not  Ramsey  v.  Wardens,  1  Bay,  (S.  C.) 

aware  of  any  good  reason  for  not  182;  Hempler  «.  Schneider,  17  Mo. 

allowing  him  to  remit  part  of  the  260:  Matlock  t>.  Lane,  32  Mo.  264; 

principal    likewise,   although    the  Litchfield  v.  Daniels,  1  Col.  T.  268. 


I 


JURISDICTION    DETERMINED    BY   VALUES.  97 

of  jnriRdiction.(^i)  But  it  has  been  held  that  such  a  "conclu- 
sion, if  fully  carried  out  or  pushed  to  its  legitimate  conse- 
quence, would  enable  a  court,  by  construction  to  change  the 
entire  jurisdiction  of  the  different  legal  tribunals. "(o)  Why 
this  declaration  is  not  a  non  seqnitur,  however,  I  am  uria])lo 
to  see.  "It  is  the  whole  amount  of  the  several  suras  demanded 
in  the  declaration,  and  not  the  amount  of  any  one  particular 
item,  that  is  to  be  considered  in  respect  to  the  jurisdiction," 
says  the  supreme  court  of  Indiana ;(^)  and  is  it  not  so,  inev- 
itably? It  is  true  policy,  at  any  rate,  to  consolidate  when 
possible.     Symincs  v.  Strong,  28  J?.  J.  Eq.  131. 

The  supreme  court  of  Connecticut  hold  that  several  claims 
may  be  combined,  provided  they  are  properly  combined  in  a 
single  count  of  the  declaration,  but  not  where  the  distinct 
claims  are  sej^arately  set  out  in  different  counts.  There  seems 
to  be  good  reason  for  this  standard  of  judging(r/)  in  one  re- 
spect. And  yet  it  is  impracticable  on  the  rule  that  the  amount 
claimed  in  the  ad  damnum  is  the  standard,  which  consists  of 
the  aggregate  amount  of  the  entire  series  of  claims. (r)  Dis- 
tinct claims  against  different  persons  are  not  to  be  combined. 
Broadivcll  v.  SviitJi,  28  La.  An.  172. 

It  is  evident,  likewise,  that  separate  siiits  in  a  court  below 
cannot  be  combined  so  as  to  give  jurisdiction  to  an  appellate 
court,  (s) 

(7i)Laugham  «.  Boggg,  1  Mo.  474.  Conn.  218;  Dennisou  v.  Dennison, 

But,  if  contempt  proceedings  are  16  Conn.  35  ;  Nichols  v.  Hastings, 

instituted,  the  amount  in  contro-  35  Conn.  548. 

versy  in  the  case  wherein  the  con-  (r)Hapgood  v.   Dolierty,  8  Gray, 

tempt  occurred  cannot  be  used  to  373;  Ladd  «.  Kimball,  12  Gray,  ] 39; 

invoke  the  jurisdiction  of  the  ap-  Ashuelot  Bank  «.  Pearson,  34  Gray, 

pellate  court ;  and  it  is  held  an  alle-  521. 

gation  that  the  prisoner  will  suffer  (s)Collins  c.  Draining  Co.,  26  La. 

damages  to  a  larger  amount  than  An.  277. 

the  jurisdiction  amount  will  not  And  if  plaintiffs  unite  in  a  suit  it 

give  the  right  of  appeal.     Wood's  is  not  the  aggregate  of  their  claims. 

Case,  3U  La.  An.  672.  but  the  amount  of  each  claim  sev- 

(o)Berry  v.  Linton,  1  Pike,  (Ark.)  erally,  that  gives  jurisdiction.     La- 

256.  vicux  V.  Company,  30  La.  An.  609. 

(p)State  Bank  v.  Brooks,  4  Blackf.  And  particularly  where  a  creditor 

486.  siezes  property,  claiming  the  whole, 

(g)Main    o.    School    District,    18  which  is  more  than  the  jurisdic- 

v.l— 7 


98  JUKISDICTION    DETERMINED    BY   VALUES. 

In  Mississippi,  where  separate  suits  were  brought  before 
different  justices  of  the  peace  on  distinct  promissory  notes, 
which  combined  amounted  to  more  than  the  sum  to  which  the 
jurisdiction  of  a  justice  of  the  peace  was  limited,  and  the  de- 
fendant appealed,  the  suits  were  dismissed  for  want  of  juris- 
diction below. (f)  The  court  said:  "Suppose  both  suits  had 
been  brought  before  the  same  justice,  could  he  have  enter- 
tained jurisdiction  of  the  causes  of  action?  The  constitution 
declares  that  the  jurisdiction  of  justices  of  the  peace  shall  be 
limited  to  causes  in  which  the  principal  of  the  amount  in 
controversy  shall  not  exceed  fifty  dollars.  The  principal  sum 
of  these  notes  is  ninety-seven  dollars  and  sixty  cents,  and  this 
was  the  amount  in  controversy,  because  it  was  what  plaintiff 
claimed  and  what  the  defendant  refused  to  pay.  It  is,  then, 
clear  that  the  claim  was  one  of  which  a  justice  of  the  peace 
could  take  no  jurisdiction  whatever,  and  it  is  difficult  to  see 
how  the  powers  of  two  justices  could  be  made  greater  than 
those  of  one  in  regard  to  the  same  controversy."  Neverthe- 
less, I  am  quite  unable  to  see  how  this  case  can  be  sustained 
on  principle.  In  the  absence  of  a  statute  requiring  the  con- 
solidation of  similar  claims  sued  on,  the  acts  of  the  parties 
should  determine  the  nature  of  the  controversy  in  such  case. 
Why  were  sej)arate  notes  given  but  that  they  were  to  be  re- 
garded as  distinct  claims?  A  book  account  or  a  single  note 
is  not  divisible;  but  how  can  one  be  compelled  to  sue  on  all 
notes  in  his  possession  at  once;  or,  suing,  why  may  he  not 
treat  distinct  promissory  notes  as  distinct  claims,  and  so  sep- 
arately collectible  ?  I  suppose  statutes  of  consolidation  only 
compel  the  combination  of  different  suits  pending  in  the  same 
forum.  The  nature  of  the  claims,  the  action  of  the  parties 
in  establishing  them  in  distinction,  and  the  rights  of  the 
holder,  would  seem  to  justify  treating  throughout,  as  dis- 
tinct and  separable  claims,  what  was  so  made  separable 
and  distinct  at  the  beginning  by  the  acts  of  the  parties  in 

tional  value,  and  another  antagonist  appeal,  the  latter  cannot  appeal, 
creditor,  claims  less  than  the  juris-  Fickard  v.  Wade,  30  ^La.  An.  (523. 
dictional  amount  neces.'^ary   to  an 

(<)Scofield  V.   Parsons,  26  Miss.  403. 


JURISDICTION    DKTERMINED    BY   VALUES.  99 

the  execution  of  ditferent  promissory  notes  or  other  choscs  in 
action. 

In  actions  for  negligence,  it  has  been  held  that  the  imme- 
diate consequences  of  a  single  act  of  negligence  may  be  com- 
bined, but  not  the  damages  resulting  from  several  acts;  as, 
for  exami^le,  where  several  animals  are  killed  at  one  time  by 
a  railroad  train,  the  claim  for  damages  will  be  considered  a 
unity,  but  claims  for  damages  in  killing  animals  at  several 
different  times  cannot  be  consolidated. (if-) 

§  104.  In  ejectment,  it  has  been  held  that  the  value  of  the 
lands  in  controversy  determines  the  jurisdiction. (r)  But 
where  property  is  levied  on  in  attachment,  it  is  the  amount 
of  the  claim  and  not  the  value  of  the  property  which  consti- 
tutes the  standard. (?(•)  Where  the  ejectment  is  by  a  land- 
lord against  a  tenant,  it  is  held  to  be  the  value  of  the  lease 
which  gives  jurisdiction  to  the  court. (.r)  Under  the  penalty 
of  a  bond,  the  amount  of  the  penalty  is  the  limitation  in 
Pennsylvania. (i/)  But,  in  Connecticut,  the  rule  seems  to  be 
the  other  way,  as  decided  in  a  case  where  a  "receipt"  was 
held  as  security  for  the  delivery  of  property.  The  court  said  : 
"Though  the  receipt  was  absolute  in  its  terms,  yet  it  was 
nevertheless  contingent  b}^  operation  of  law,  and  it  was 
accordingly  held  as  a  security  only  for  the  actual  value  of  the 
property  which  had  come  into  the  receiptor's  hands.  The 
five  hundred  dollars,  therefore,  was  in  the  nature  of  a  penalty 
to  secure  the  return  of  the  property,  or  the  payment  of  its 
!  value.  As  such,  it  was  a  security  only  for  the  value  of  the 
1       property,  which  value  alone,  when  shown,  could  be  recovered, 

(w)R.  R.  V.  Elliott,  20  Ind.  430;  not  do  so  no  implication  is  indulged 

R.  R.  V.  Litton,  27  Ind.  71.  against  the  jurisdiction.    And  even 

(u)State  V.  Smith,  14  Wis.  567.  if  the  proof  shows  the  value  of  the 

And  so  in  Michiiran,  where  title  land  to  be  beyond  the  jurisdiction 

or  possession   of  land  is  involved  in  amount,  the  court   will  not  be 

the  value   of   the   land   gives   the  ousted  of  its  jurisdiction  thereby, 

jurisdiction.     Fuller*.  Grand  Rap-  Sullivan  ».  Vail,  42  Conn.  90. 

ids,  40  Mich.  395.  ((r)Hoppe  v.  Byers,  39  la.  573. 

But,   in  Connecticut,  it  is  held,  (;),')Ellis  v.  Silverstein,  26  La.  An. 

contra,  that  it  is  not  necessary  for  a  47. 

declaration  to  state  the  value  of  the  (^)Korrester      v.     Alexander,     4 

land  in  ejectment.     And  if  it  does  Watts  &  Serg.  312. 


100  JUKISDICTION    DETERMINED    BY   VALUES. 

and  it  was  on  this  ground  that  only  the  sum  of  one  hundred 
dollars  was  recovered  in  the  case.  This  being  so,  it  follows,  of 
course,  that  the  live  hundred  dollars  was  not  a  debt  to  that 
amount  on  the  non-delivery  of  the  property,  but  only  to  the 
amount  of  the  value  of  the  property;  which,  being  less  than  five 
hundred  dollars,  the  city  court  had  jurisdiction  of  the  subject- 
matter.  "(^)* 

§  105.  Where  the  ad  damnum  exceeds  the  jurisdiction,  it  is 
held  that  the  jurisdiction  is  excluded,  even  although  the 
actual  amount  in  controversy  is  not  beyond  the  prescribed 
limit,  (a)  But  where  there  is  no  amount  named  in  the  general 
conclusion,  or  ad  damnum  clause,  it  is  held,  in  Indiana,  that 
the  aggregate  amounts  claimed  in  all  the  counts  may  be 
taken.  (6)  t 

§  106.  In  matters  of  crimes,  misdemeanors,  and  torts,  the 
principle  of  limitation  by  amount  is  essentially  the  same. 
Thus,  in  larceny,  the  jurisdiction  is  to  be  determined  by  the 
value  of  the  property  claimed  in  the  indictment,  and  not  by. 
that  ass'gned  in  the  verdict  of  the  jury,(c)  although,  of  course, 
the  penalty  may  be  guided  by  the  latter.  But  when  a  court 
has  only  jurisdiction  in  misdemeanors  where  the  fine  does 
not  exceed  live  hundred  dollars,  it  cannot  take  cognizance  of 


(g)Fowler    v.   Bishop,   32   Conn.  (a)Ashuelot  Bank  t).  Pearson,  14 

206.  Gray,  521. 

*In  Connecticut  a  statute   pro-  (6)Culley  p.  Laybrook,  8  Ind.  286. 

vides  that   the  debt  secured  in  a  jThe  ad  damnum  cluuse  goverm^. 

mortgage  shall  determine  the  juris-  in   Connecticut,   unless    it  clearly 

diction   in   foreclosure    in    certain  appears  on  the  face  of  the  declara- 

courts;  and  even  if  the  foreclosure  tion  or  the  bill  of  particulars  that 

is  for  the  interest  only,  which  is  the  debt  or  damage  actually  claimed 

less  than  the  jurisdictional  limit  as  is  of  necessity  too  small  to  confer 

to    amount,    the    statute    applies.  jurisdiction.     Hunt  v.  Rockwell, -41 

Stone  t).  Piatt,  41  Conn.  2S5.     And,  Conn.  51.     In  Massachusetts  the  r/f7 

on  the  other  hand,  if  the  amount  rfa7«vi"wi  clause  absolutely  governs, 

secured  is  only  five  hundred  dol-  without     regard     to     the    amount 

lars,  the   courts   have   jurisdiction  claimed  in  the  body  of  the  declara- 

although  the  added  interest   takes  tion,  or  proved  at  the  trial.     Clay 

the     amount     beyond     the    juris-  v.  Barlow,  123  Mass.  378. 

dictional    limit.      Boyle    c.    Rice,  (^-jState  v.  Church,  8  Clarke,  (la.) 

Id.  418.  258. 


JURISDICTION    DETERMINliD    BY    VALUES.  101 

an  offence  where  the  fine  may  be  five  hundred  dollars,  and,  m 
addition,  the  offender  may  be  declared  infamous,  and  incapa- 
ble of  voting  or  holding  office. (tZ) 

In  trespass  to  real  estate  the  amount  demanded  limits  the 
power  of  the  court. (g)  And  so,  if  a  demand  exceeds  the 
authority  of  a  justice,  a  verdict  for  less  than  the  limitation 
on  the  justice's  court  will  not  save  the  jurisdiction.  But  in 
Louisiana  it  is  the  value  of  the  land  that  controls.  Derbies  v. 
Romero,  28  La.  An.  644. 

In  replevin,  if  the  property  is  distrained  for  rent  (or  levied 
on  under  execution)  the  amount  claimed  is  the  standard;  but 
where  it  is  in  the  nature  of  detinue,  to  try  the  right  of  property, 
fche  value  of  the  property  furnishes  the  rule.(/) 

In  a  continuing  trespass,  day  after  day,  under  a  statute 
prescribing  a  fine  for  the  continuance,  as,  for  example,  a  fine 
of  one  dollar  for  every  twenty-four  hours  a  fence  shall  con- 
tinue across  a  public  road,  the  demand  for  the  whole  time 
determines  the  jurisdiction,  because  the  offence  is  indivisi- 
ble.(^) 

§  107.  As  the  limiting  amount  is  of  the  subject-matter, 
and  not  pertaining  merely  to  a  privilege  of  defendant,  it  fol- 
lows that  it  cannot  be  waived.  But  when  it  becomes  apparent 
that  the  jurisdiction  has  been  exceeded,  it  is  the  duty  of  the 
court  to  dismiss  sua  sponte,  without  objection  by  the  defend- 
ant, (/t)  and  the  rendering  of  a  judgment  is  actionable  to  the 
defendant,  (i) 

Yet,  as  in  other  cases,  where  there  is  a  well-founded  doubt 
as  to  the  amount,  the  jurisdiction  will  be  sustained. (j)     And  a 

(d)Flynn    t>.    Commonwealth,    2  taking  and  detention,  added  to  the 

Bush.  593.  value  of  the  property,  exceed  the 

(e)Linduff  v.  Plank- road  Co.,  14  jurisdiction,  this  will  not  oust  the 

OhioSt.,33G.  jurisdiction.     Higgins  v.  Deloach, 

(/)Pcyton  V.  Robertson,  9  Wheat.  54  Miss.  498. 

528.  (AjGamber  v.  Holben,  5  Mich.  333. 

(jr) Commonwealth     ».     Mills,    6  («)Morgan  v.  Allen,  5  Ired.  156. 

iJush.  296.  (j)nenry  o.  Tilson,  17  Vt.  484. 

And   in  the   latter  case   if    the 
damages  assessed  for  the  wrongful 


103  JURISDICTION    DETERMINED    BY    VALUES. 

manifest  error  will  be  allowed  to  be  corrected  in  order  to  save 
jurisdiction,  (k)  if  the  amendment  is  made  before  trial. (Z) 

Although,  in  doubtful  cases,  all  intendments  are  in  favor 
of  the  jurisdiction,  yet  it  is  a  proper  ground  for  dismissing  a 
case,  on  motion,  that  the  declaration  does  not  show,  or  else  a 
promissory  note  on  the  trial,  that  the  sum  due  is  within  the 
jurisdiction. (m)  And  if  the  plaintiff  claims  to  bring  down  the 
amount  below  the  limitation  by  payments  not  indorsed  on  the 
note,  the  payments  must  be  set  out  in  the  declaration. (?;?) 

In  Vermont,  however,  where  these  points  were  decided, 
jurisdiction  has  been  made  to  depend  on  the  j^^'oof^  ^^^  only 
in  book  accounts,  but  in  trover,  in  assumjjsit,  and  in  trespass 
de  bonis  as2)ortatis,(i)i)  which  is  not  the  general  rule. 

A  want  of  jurisdiction  as  to  amount  is  not  cured  by  a  trans- 
fer to  another  court  under  the  provisions  of  a  statute  provid- 
ing for  such  transfer,  (n)  though  such  court  would  otherwise 
have  jurisdiction.* 

§  108.  As  to  set-offs,  where  a  statute  allows  a  judgment 
for  an  excess,  such  excess  is  taken  to  be  the  sum  in  disj)ute ; 
as,  for  example,  where  a  suit  was  for  one  thousand  dollars, 
and  a  set-oif  was  brought  in  for  four  thousand  dollars,  and 
judgment  for  the  balance,  it  was  held  that  the  amount  in  dis- 
pute was  three  thousand  dollars,  and,  therefore,  that  the 
supreme  court  of  the  United  States  had  jurisdiction  of  an 
appeal,  (o) 

In  Kentucky  it  appears  that  where  a  plaintiff  demands  a 
sum  which  is  reduced  below  the  limits,  by  set-off  or  counter 
claim,  the  appellate  court  may  take  jurisdiction  notwith- 
standing the  smallness  of  the  judgment ;  but  if  the  demand  is 

(yfc)Temple  e.  Bradley-,  14  Vt.  257.  principle    that   an    appeal   cannot 

(;)Whitney  v.  Sears,  IC  Vt.  590.  confer    jurisdiction,   in    an}'   way, 

(m)Perkins  v.  Pick,  12  Vt.  596.  whereof  the  lower  court  had  none, 

(w)Parker  «.  Shropshire,  26   La.  even  if  the  case  is  otherwise  within 

An.  38.  the  jurisdiction   of    the   appellate 

*Aud  a  party  is  not  allowed  to  court.     Billingsly  v.  State,  3  Tex. 

remit  in  an  appellate  court  so  as  to  Ct.  of  App.  686. 

{rive    jurisdiction.      McDonald    v.  (())Ryan  v.  Bindley,  1  Wall.  G7. 

Dickens,  58  Ga.  77.     It  is  a  settled 


JURISDICTION    DETERMINED    BY    VALUES.  103 

thus  reduced  by  verdict,  there  is  no  appeal,  on  the  ground 
that  the  sum  in  controversy  is  the  judgment  rendered,  when 
the  case  is  brought  up  for  review(/') — a  ground  sustained  by 
the  United  States  supreme  court  in  part,  except  that  if  the 
plaintiff  appeals  his  original  claim  is  the  sum  in  disi3ute.(r/) 

In  California,  where  a  plaintiff  claimed  two  hundred  dol- 
lars, and  an  off-set  was  pleaded  of  one  hundred  and  twenty- 
five  dollars,  and  judgment  was  given  for  plaintiff  for  eighty-six 
dollars,  from  which  the  plaintiff  appealed,  the  supreme  court 
refused  to  entertain  jurisdiction,  on  the  ground  that  the  sum 
in  dispute  was  less  than  two  hundred  dollars,  (r)  But,  on 
principle,  is  not  the  rule  in  the  United  States  coart  the  better 
one?  When  a  plaintiff  appeals  is  it  not  because  he  claims 
he  has  been  wa-onged  by  the  judgment  as  to  his  demand? 
Therefore,  ought  not  the  demand  to  be  the  criterion  ? 

Where  a  set-off  is  interposed,  and  the  excess  over  and 
above  the  plaintiff's  demand  exceeds  the  amount  of  jurisdic- 
tion, tlie  set-off  should  be  rejected. (s)  But  the  excess  may 
be  remitted  over  and  above  the  jurisdictional  amount. (^) 

§  103.  In  Indiana,  where  there  is  no  general  sum  stated 
in  the  conclusion  of  a  declaration,  the  aggregate  of  the  differ- 
ent counts  may  be  taken  as  the  value  of  the  claim. (i*) 

§  110.  But  where  there  are  several  mortgagees  brought 
before  the  court  in  a  suit  to  foreclose,  entered  by  a  senior 
mortgagee,  and  the  aggregate  claims  are  beyond  the  jurisdic- 
tion, it  is  held  that  this  does  not  oust  the  jurisdiction  of  the 
court,  the  case  being  similar  to  that  of  an  attachment  where 
separate  creditors  file  their  respective  claims. (??) 

§  111.  The  allegations  of  a  declaration  are  not  annulled  by 
proof  of  the  purchase  price  of  the  property  in  controversy 
being  less  than  the  limitation  value,  (w) 

(p)Tipton    V.   Chambers,  1    Met.  (s)Murphy  v.  Evans,  11  Ind.  518. 

(Ky.)  5GS;    Williams   v.  Wilton,  5  (OPate  «.  Shafer,  19  Ind.  174. 

Dana,  597.  ('/)Culley  v.  Laybrook,  8  Ind.  286. 

(f/)Gordon   «.   Ogden,  3  Pet.   33;  (^!)Mack  «.  Grover,  12  Ind.  255. 

Smith  V.  Honey,  3  Pet.  469.  ((c)Oakey  v.  Aiken,  12  La.  An.  11. 

(r)Simmons  v.  Brainard,  14  Cal, 
278. 


104  JURISDICTION    DETERMINED    BY    VALUES. 

And  so,  on  the  other  hand,  if  a  declaration  lays  an  amount 
witliin  the  jurisdiction,  but  the  proof  shows  a  larger  amount, 
the  suit  will  be  sustained  provided  the  verdict  is  only  for  the 
amount  within  the  jurisdiction;  and  if  there  are  two  counts, 
and  the  proof  shows  one  of  them  to  be  beyond  the  jurisdiction, 
the  suit  may  be  maintained  on  the  other,  the  one  in  excess 
being  considered  merely  auxiliary. (x)  And  so  in  an  action 
before  a  justice  of  the  peace. (?/) 

(3) Cotton  Press  Co.  v.  Chevelier,  (y)^hey  v.  Engle,  1  Wash.  Ter. 

66  Ga.  4i)4.  72. 


VENUE.  105 


CHAPTER  XIV. 

VENUK. 

$  112.  Meaning  of  term  "  Venue." 

113.  General  jurisdiction  of  state. 

114.  Suits  between  non-residents. 

115.  Torts  committed  without  the  jurisdiction. 

116.  Venue  in  regard  to  lands. 

117.  Venue  in  regard  to  counties. 

118.  Process  in  another  county. 

119.  Jurisdiction  by  levy  on  land. 

120.  Venue  in  regard  to  boundaries. 

121.  Place  of  holding  court. 

§  112.  The  term  "Yeime,"  in  relation  to  actions  brought, 
means  simiDly  the  place  of  trial.  As  to  what  are  styled  local 
actions — such,  for  example,  as  an  interest  in  lands — usually 
the  venue  is  the  district  or  the  county,  as  the  case  may  be, 
where  the  subject-matter  lies.  But,  in  general,  transitory 
actions  may  be  tried  wherever  personal  service  can  be  made 
on  the  defendant  ;*  and  these  may  be  either  ex  contractu  or  ex 
delicto,  with  exceptions  to  be  noted  below. 

§  113.  As  to  the  general  jurisdiction  of  the  courts  of  a 
state  this  is,  of  course,  co-extensive  with  its  sovereignty, 
which  is  limited  only  by  the  territory  of  the  state,  and  attaches 

*A   party  must  have  an  oppor-  where  defendants  indorsed  on   the 

tunity  to  be  heard  as  to  his  rights  back  of  a  complaint,  in  vacation, 

in  a  personal  action,  and  even  where  "we  hereby  enter  an  appearance  to 

the  proceedings   are  in  rem  there  the   foregoing    action,    and  waive 

must   be   some   kind  of  notice,  so  the  issuing  and  .service of  process," 

that,  as  far  as  possible,  the  oppor-  this  was  held  not  to  constitute  an 

tunity  may  be  given  the  owner  to  appearance,   and,    there    being    no 

appear    and    tlefend.     Windsor    v.  service    of     process,    no     personal 

McVeigh,  93  U.  S.  274.     In  a  per-  judgment  could   be   entered.     Mc- 

sonal  action  there  must  be  personal  Cormack    «.    Bank,    53    Ind.    46(5. 

service,  or  a  personal  appearance,  While  a  non-resident  may  appear 

or  appearance  by  an  attorney.    And  by  an  attorney,  and  thus,  in  all  re- 


106  VENUE. 

to  all  the  property  and  persons  within  the  limits  thereof, 
although  to  be  so  exercised  as  only  to  conclude  by  judgment 
parties  to  the  actions  brought  in  the  courts,  and  not  the  citi- 
zens of  other  states  in  j^cTsonam,  except  those  who  consent  to 
the  jurisdiction. (a)  And  on  this  principle  a  crime  committed 
in  another  state  can  never  be  tried  in  the  domestic  tribunals. 
Thus,  in  Louisiana,  where  a  gun  was  stolen  in  another  state, 
and  conveyed  across  the  border  and  sold,  it  was  held  that  as 
the  mere  selling  the  gun  in  the  state  was  no  violation  of  the 
laws,  although  it  might  be  in  proof  that  the  original  intention 
in  taking  it  was  to  steal  it,  the  seller  could  not  be  prosecuted 
there ;  the  larceny,  if  such  it  was,  having  been  perfected  in 
the  adjoining  state. (^)  And,  on  the  other  hand,  where  a 
statute  prohibits  the  removal  out  of  the  state,  or  selling  or 
otherwise  disposing  of  property  under  a  specific  lien,  as  a 
chattel  mortgage,  and  property  is  taken  to  another  county  and 
there  sold  unlawfully,  the  place  of  sale  is  the  venue  of  the 
offence.     Rohersnn  v.  State,  3  Tex.  Ct.  of  App.  502. 

In  Massachusetts  it  has  been  decided  that  an  offence  com- 
mitted on  board  a  merchant  ship  in  tide-water,  lying  at  anchor 
between  one-third  and  one-half  mile  distant  from  the  Charles- 
town  navy  yard,  is  exclusively  cognizable  in  the  state  courts. (c) 
And  yet,  for  the  purposes  of  certain  criminal  actions,  the  navy 
yard  itself  is  considered  out  of  the  state  sovereignty  and 
jurisdiction,  because  the  United   States  has  purchased  the 

spects,  submit  to  the  jurisdiction,  however.       Smith   c.    Denman,   48 

(Wilson  V.  Zeigler,  44  Tex.  657,)  it  Ind.    65.       Service   by   publication 

is   held    in    New    York    that    the  must  be  strictly  according  to  the 

authority  of  an  attorney  to  appear  statute,  and  particularly  in  divorce 

in  a  justice's  court  must  be  shown,  — the  only  personal  action  wherein 

and  will  not  be  presumed.     Sperry  a  decree  can  be  rendered  by  publi- 

«.    Reynolds,   65   N.    Y.  179.     The  cation.     Stanton  v.  Crosby,  9  Hun. 

appearance  must  not  be  mereh' for  370.     Notice  by  publication    o-ive^ 

a  special   purpose,  as   to  question  jurisdiction  as  to  property  within 

the  jurisdiction  of  the  court,  (Mc-  the  jurisdiction.     Johnson  v.  Her- 

Nab   V.  Bennett,  66  111.   158,)  or  to  bert,  45  Tex.  3(i4. 

move  to  set  aside  an  attachment,  ((^)  Adams  v.  Lamar,  8  Ga.  89. 

(Tillany  «.  Lord,  65  N.  Y.  310,)  or  (6)State  v.  Keunnals,  14  La.   An. 

to   testify  as  a  witness,  (Nixon  «.  279. 

Downe}^  42  la.   80.)      An  applica-  (f)Conmiouwealth    e.    Peters,    12 

lion  to  defend  will  be  conclusive.  Met.  390. 


vp:nue.  lOT 

yard,  and  the  state  has  only  reserved  such  concurrent  juris- 
diction over  it  as  that  process  might  run  therein  for  crimes 
committed  elsewhere  in  the  state.  And  so,  where  the  ;3tat- 
ute  required  that  all  vessels  carrying  stone  within  the  com- 
monwealth should  be  weighed  and  marked,  under  penalty  for 
neglect,  and  a  qui  tani  action  was  brought  against  the 
owner  of  a  vessel  not  thus  weighed  and  marked,  which  was 
employed  in  carr3-ing  stone  from  Maine  to  the  navy  yard,  it 
was  held  the  action  was  not  maintainable,  on  the  ground  that 
the  vessel  was  not  emjjloyed  in  conveying  stone  within  the 
commonwealth,  within  the  meaning  of  the  statute. (r/) 

The  rule  of  tide-water  jurisdiction  is  thus  stated  by  the- 
New  York  court:  "Where  a  body  of  water,  in  which  the  tide 
ebbs  and  flows,  is  situated  between  a  range  of  islands  and  the 
main  shore,  and  all  are  so  near  to  each  other  that  a  person, 
with  the  ordinary  power  of  vision  can  see  with  the  naked  eye, 
from  j)oint  to  point,  on  every  part  of  the  connecting  line, 
what  is  doing  on  each,  it  is  included  in  the  county  adjoin- 
ing, according  to  the  rationale  of  the  rule  which  extends  the 
jurisdiction  of  the  county  to  a  line  running  from  one  to  the 
other  of  the  fauces  terra."  (e)  And,  previously,  it  was  held  that 
"Long  Island  Sound  is,  by  well  settled  rules,  a  part  of  the  high 
seas,  and  no  one  of  the  states  bordering  upon  it  has  the  right, 
by  any  statute  or  other  act  of  sovereignty,  to  extend  her  juris- 
diction oxev  it.  The  high  seas  include  all  those  parts  of  the 
main  ocean  which  are  not  within  the  fauces  terree,  the  mouth 
or  chops  of  a  channel — that  is,  the  space  between  the  head- 
lands so  near  to  each  other  that  a  person  on  one  of  them  can 
see  with  the  naked  eye  what  is  doing  on  the  other.  If  the 
headlands,  or  points  upon  the  main-lands,  are  thus  near,  the 
water  within  them  is  an  arm  of  the  sea,  denominated  a  bay, 
gulf,  estuary,  etc.,  as  the  case  may  be,  and  is  included,  or 
may  be,  in  the  adjoining  state  or  county.  If  the  distance 
between  the  headlands  is  greater  than  that  mentioned,  the 
waters  between  and  within  them  belong  to  the  high  seas,  and 

(fZ)Mitchcll  «.  Tibbctts,  17  Tick.  (e)People  «.  Wilson,  :J  Park  ( 'rim. 

aOU.  Cases,  205. 


108  VENUE. 

are  exclusively  under  the  maritime  jurisdiction  of  the  federal 
courts. "(/)  This  topic  will  recur  again,  more  particularly,  in 
the  chapter  on  admiralty. 

It  is  exclusively  for  the  political  department  to  define  state 
boundaries;  and  the  courts  cannot  act  upon  it  when  the 
government  has  so  exercised  its  prerogative. (^) 

§  114.  Tiiere  is  no  impropriety  in  a  cognizance  by  the 
courts  of  actions  brought  wherein  both  parties  are  non-resi- 
dents and  citizens  of  different  states.*  On  this  the  supreme 
court  of  North  Carolina  remarks :  '*To  many  purposes  the 
citizens  of  one  state  are  citizens  of  every  state  in  the  Union. 
The}'  are  not  aliens,  one  to  the  other;  they  can  purchase  and 
hold,  and  transmit  bj^  inheritance,  real  estate  of  every  kind 
in  each  state.  It  would  be  strange,  indeed,  if  a  citizen  of 
Georgia,  meeting  his  debtor,  a  citizen  of  Massachusetts,  in 
the  state  of  New  York,  should  not  have  a  right  to  demand 
what  was  due  him,  nor  be  able  to  enforce  his  demand  by 
a  resort  to  the  courts  of  that  state.  It  is  said  that  the 
federal  court  is  open  to  him.  That  is  so,  provided  the  sum 
claimed  is  to  an  amount  authorizing  the  interference  of  the 
latter  court,  to-wit,  $500.  What  is  to  become  of  those  numer- 
ous claims  falling  short  of  that  amount?  Must  a  citizen  of 
California,  to  whom  a  citizen  of  Maine  owes  a  debt  of  $490, 
go  to  Maine  and  bring  his  suit  there,  or  wait  till  he  catches 
him  in  California?  We  hold  not;  but  the  courts  of  every 
state  in  the  Union,  where  there  is  no  statutory  provision  to 
the  contrary,  are  open  to  him  to  seek  redress.  The  case  of 
Stramberg  v.  Heckman,  1  Busbee,  250,  to  which  our  attention 
has  been  drawn,  was  between  two  foreigners.  The  court,  in 
sustaining  the  demiu'rer  to  the  plea  in  abatement,  stated  that 
it  did  not  appear  in  the  plea  where  the  contract  sought  to  be 
enforced  was  entered  into — whether  in  a  foreign  country  or  in 
this  state — and  thereupon  the  demurrer  was  sustained.  If 
the  principle   enforced  there  between  foreigners  is  to  be  ap- 

(fjManlcy  »J.  People,  •'!  Scld.  ;!0(i.  f](>?;e  a  inortLiaiie  anainst  anoflior 
(5')Bedel  v.  Liomis.  11  N.  H.  15.  non-resideut.  Butler  v.  Carler,  44 
*And  so  a  non-residcut  can  i'urc-       Tex.  4Sj. 


VENUE.  109 

plied  to  the  citizens  of  the  different  states  of  the  Union  when 
seeking  to  enforce  a  contract  in  the  courts  of  a  third,  then 
the  plea  here  is  defective ;  there  is  nothing  in  it  to  show  that 
the  contract  was  not  made  in  North  Carolina.  In  England  a 
contract  made  in  a  foreign  country  may  be  enforced  there  by 
the  parties  to  it."(/t)  Delavidge  v.  Viaima,  1  B.  &  A.  284; 
Story's  Conf.  Laws,  §§  538-554. 

But,  unless  in  attachment  or  other  proceedings  in  rem, 
there  must  be  personal  service,  and  no  publication  can  be 
allowed  so  as  to  permit  the  entry  of  a  personal  judgment.* 
Says  the  Texas  court,  in  a  case  involving  this  matter:  "The 
petition  apj)ears  to  be  an  anomaly  in  judicial  proceedings, 
and  not  in  conformity  or  reconcilable  to  either  the  common 
or  statute  law  of  this  country.  It  seems  to  be  an  effort  to 
call  upon  the  court,  without  having  either  person  or  property 
within  our  jurisdiction,  to  decide  an  issue  between  citizens  of 
another  state,  that  could  never  be  of  consequence  to-  either 
party,  except  on  the  future  contingency  of  the  defendant 
hereafter  introducing  proj)erty  within  our  jurisdiction  on 
which  the  judgment  could  operate;  and  could  this  issue  be 
forced  on  us  it  would  be  a  precedent  for  exercising  jurisdic- 
tion on  issues  sent  from  any  part  of  the  world,  "(i)  Personal 
service,  however,  may  be  waived  by  appearance,  (j) 

Massachusetts  goes  further  than  North  Carolina,  in  which 
latter  state,  as  we  have  seen  above,  the  comity  is  not  ex- 
tended to  foreigners.  But  the  court  of  the  former  state  de- 
clares: "Personal  contracts  are  said  to  have  no  situs  or 
locality,  but  follow  the  person  of  the  debtor  wherever  he  may 
go,  and  there  seems  to  be  no  good  reason  why  courts  of  any 
country  may  not  lend   their  aid  to  enforce  such  contracts, 

(A)Mi]ler  v.  Black,  2  .Jones  L.  842.  ally.     Insurance  Co.   «.  Collins,  54 

♦However,  as  to  foreign  corpora-  Ga.  376.    And  the  same  rule  maybe 

tions,  they  may  be  served  by  sum-  established  as  to  diffeient  coimties 

mons  read  to  a  resident  agent,  and  in  the  case  of  a  resident  corporation. 

leaving  a  copy,  wherever  the  cor-  R.  li.  «.  Oaks,  52  Ga.  410. 

poration  does  business  by  means  of  (/)Ward  v.  Lathrop,  4  Tex.  181; 

an  agency  or   branch   office.     The  Bartlett  v.  Holmes,  12  Hun.  398. 

mode  and   the   venue   are  usually  (/)Canipbcll   v.    Wilson,   6    Tex. 

prescribed     by     statute,      specific-  392. 


110  VENUE. 

especially  since  it  is  a  well  known  principle  that,  in  constru- 
ing such  contracts,  the  law  of  the  place  where  they  are  made 
will  be  administered.  So  that  the  objection  made  in  this  case 
of  the  possible  difference  between  the  laws  of  Demerara  and 
this  commonwealth  can  have  no  influence  on  the  ques- 
tion. "(A:) 

§  115.  As  to  torts  committed  without  the  jurisdiction,  the 
influence  of  which  extends  into  the  jurisdiction,  an  interest- 
ing question  arose  in  a  case,  which,  however,  passed  off  un- 
fortunately on  another  ground,  leaving  the  question  unde- 
cided. The  case  was  in  one  of  the  circuit  courts  of  the  United 
States,  and  involved  these  facts :  A  manufactory  was  located 
on  Goose  Island,  near  the  state  of  Connecticut,  whence  the 
noxious  odors  were  blown  to  the  plaintiff's  residence  in  the 
state,  injuring  the  health  of  his  family,  destroying  their  gen- 
eral comfort,  and  impairing  the  value  of  the  property.  On 
the  argument  of  a  bill  to  enjoin  the  nuisance  it  was  claimed 
that  even  if  Goose  Island  were  outside  of  the  limits  of  the 
district  of  Connecticut,  yet,  as  the  odors  were  wafted  to  the 
shore,  and  there  inflicted  the  injury,  the  offence  was  thereby 
"ftithin  the  jurisdiction. (/) 

In  New  York  it  is  held  that,  as  a  matter  of  law,  the  courts 
have  jurisdiction  of  torts  committed  abroad,  in  a  foreign 
country,  between  non-resident  foreigners,  but  will  only  exer- 
cise it,  in  their  discretion,  in  exceptional  cases,  on  account  of 
public  policy.  (/;;)  The  matter  is  closely  discussed,  and  the 
reasons  set  forth  as  follows :  "Actions  for  injuries  to  the 
person  are  transitory,  and  follow  the  person;  and,  therefore, 
so  far  as  the  nature  of  the  action  is  concerned,  one  foreigner 
may  sue  another  foreigner  in  our  courts,  for  a  tort  committed 
in  another  country,  the  same  as  on  a  contract  made  in  another 
country.  It  is  now  settled  that  the  courts  of  this  state  have 
and  will  entertain  jurisdiction  of  actions  for  personal  injuries. 


(/i;)Ban-ell   v.  Benjamin,  15  Mass.       enforced   in   anotlier    jurisdiction. 
C3.56.  Kennedy  v.  Cochrane,  65  Me.  51)4. 

A   void  contract,  by  tlie  laws  of  (?)Keyser  v.  Coe,  9  Blatchf.  33. 

the  state  where  made,  will  not  be  (?«)Dewitt  «.  Buchanan,  54  Barl). 

32. 


VENUE.  "ill 

committed  abroad,  when  both  or  either  of  the  parties  are  cit- 
izens  of  the  United  States.     Glen  v.  Hodr/es,  9  Johns.  67 ; 
Smith  V.  Bull,  17  Wend.  323;  Lister  v.  Wrir/ht,  2  Hill,  320; 
Johnson  v.  Dalton,  1  Cowen,  548.     I  am  aware  that  the  New 
York  common  pleas,  in  Malony  v.  Dows,  8  Abb.  310,  held  other- 
wise, but  that  case  is  not  regarded  as  authority  in  this  court. 
That  decision  was  probably  affected  by  the  necessities  of  the 
case,  overlooking  the  second  section  of  the  fourth  article  of 
the  constitution  of  the  United  States.     The  case  of  Fahrinas 
V.  Mostyn,  2  Black.  920,  is  referred  to  on  this  question.     In 
that  case  Lord  Mansheld  put,  by  way  of  illustration,  the  case 
of  two  Frenchmen  fighting  in  France,  and  expressed  a  doubt 
of  the  jurisdiction  of  the  courts  of  England  in  such   case. 
But  the  reason  given  why  the  court  would  not  have  jurisdic- 
tion in  such  case  has  been  held  in  this  state  not  sufficient. 
See  Mclvor  v.  McCahe,   20   How.   Pr.   261,   and   Gardner  v, 
Thomas,  14  Johns.  134.     In  the  latter  case  the  action  was  for 
a  tort  committed  on  the  high  seas,  on  board  a  British  vessel, 
both  parties  being  British  subjects.     It  originated  in  a  jus- 
tice's court,  where  the  plaintiff  had  judgment.     The  court 
held  that,  although  it  might  take  cognizance  of  torts  commit- 
ted on  high  seas,  on  board  foreign  vessels,  when  both  parties 
were  foreigners,  yet,  on  principles  of  policy,  it  would  often  rest 
in  the  sound  discretion  of  the  court  to  afford  jurisdiction  or 
not  according  to  the   circumstances  of   the  case.     On   this 
ground  the  judgment  of  the  justice  was  reversed.     I  have  been 
unable  to  discover  any  principle  on  which  the  jurisdiction  of 
the  court  in  such  a  case  as  this  can  be  denied ;    but,  as  a 
question  of  jJoUcy,  there  are  many  reasons  why  jurisdiction 
should  not  be  entertained.     Unless  for  special  reasons  non- 
resident foreigners  should  not  be  permitted  the  use  of  our 
courts  to  redress  wrongs  or  enforce  contracts  committed  or 
made  within  their  own  territory.     Our  courts  are  organized 
and  maintained  at  our  own  expense,  for  the  use,  benefit  and 
protection  of  our  own  citizens.     Foreigners  should   not  be 
invited  to  bring  their  matters   here  for  litigation.    [Section 
114,  supra.'\    But  if  a  foreigner  flee  to  this  country  he  may 
be  pursued  and  prosecuted  here.     Nothing  appears  in  this 


112  VENDE. 

case  showing  why  jurisdiction  should  be  entertained.  It 
seems  an  ordinary  case  of  assault  and  battery  committed 
in  Canada,  both  parties  still  residing  there,  the  defendant 
being  casually  here  when  arrested.  It  is  most  clearly  against 
the  interests  of  those  living  on  the  border  for  our  courts  to 
encourage  or  entertain  jurisdiction  of  such  actions.  To  do  so 
would  establish  a  practice  which  might  often  be  attended  by 
serious  disadvantage  to  persons  crossing  the  border.  The 
true  policy  is  to  refuse  jurisdiction  in  all  such  cases  except 
for  special  reason  shown."  And  this  policy  is  extended  ex- 
pressly to  cases  between  mariners  and  master  on  board  a 
vessel  lying  in  port.(»)  But  not  to  the  extent  which  would 
prohibit  a  discharged  seaman,  though  a  foreigner,  from  bring- 
ing an  action  against  the  foreign  master  of  the  ship  for  a 
tort  committed  on  the  high  seas.(o) 

An  action  cannot  properly  be  brought  in  one  state  for 
official  misconduct  in  another  state. (p)  And  in  New  York, 
not  in  another  county,  by  express  statute. 

§  116.  Although  no  real  action  can  be  maintained  in  one  state 
as  to  lands  situated  in  another,  yet,  where  a  defendant  resides 
within  the  jurisdiction,  there  is  nothing  to  hinder  a  suit  from 
lying  against  him  in  regard  to  the  proceeds  of  lands  so  lo- 
cated; as,  for  examj)le,  to  compel  distribution  thereof  as  a 
part  of  an  estate  under  administration,  (g)  And  so,  in  w^ind- 
ing  up  the  affairs  of  a  partnership,  a  court  may  order  the  sale 
of  real  estate  in  another  district  or  state.  "Such  an  order 
does  not  require  the  agency  of  any  officer  out  of  the  jurisdic- 
tion of  the  court.  The  order  is  to  act  upon  the  parties  in  the 
cause,  and  the  transfer  of  the  title  is  to  come  from  them,  and 
not  from  the  person  through  whose  agency  the  sale  is  to  be 
made.  It  is  not  like  the  case  of  land  sold  under  execution. 
If  the  court  has  not  the  power  to  order  a  sale,  it  has  not  juris- 
diction over  the  subject-matter  at  all,  and  cannot  divide  the 
land,  or  compel  either  party  to  release  his  title  to  it  when 

(7i)Gardner  v.     Thompson,     14           (j9)Flower  v.  Alien,  5  Cowen.  669. 

Johns.  137.  (g)  Edwards  v.  Ballard,  14  La.  An. 

(o).Tohn3on  v.   Dalton,  1  Cowen,      362. 
543. 


VENUE.  113 

lying  in  another  state,  and  suits  must  be  commenced  in  each 
state  wliere  the  land  lies.  Such  inconvenience  in  the  admin- 
istration of  justice  cannot  be  tolerated,  and  hence  the  court 
must  have  power  to  direct  a  public  sale  of  the  land,  and  com- 
pel the  parties  to  convey  the  title  accordingly,  "(r)  although 
this  is  a  well-marked  exception  to  the  general  rule  concerning 
local  and  transitory  actions.  The  principle  does  not  apply  to 
cases  of  partition,  because  therein  the  court  makes  the  titles, (.s) 
and  the  proceeding  is  in  rem.  In  all  cases,  however,  whereni 
the  action  is  merel}^  in  personam,  the  rule  prevails. (s)  And 
so  a  court  of  equity  may  entertain  a  bill  for  the  specific  per- 
formance of  a  contract  respecting  land  in  a  foreign  country, 
the  parties  being  resident  in  the  jurisdiction. (f) 

§  117.  We  now  consider  the  subject  of  venue,  in  its  more 
common  view,  in  relation  to  different  counties  of  the  same  state, 
as  usually,  for  the  purpose  of  convenience,  courts  of  original 
jurisdiction  are  limited  to  a  single  county,  and  sometimes  to 
a  smaller  territory,  as  a  town  or  city.  And,  in  a  modified 
form,  the  same  principles,  to  a  considerable  extent,  apply  to 
such  limits  as  to  those  of  a  state  jurisdiction.  The  division 
of  a  county  does  not,  however,  oust  jurisdiction  already  at- 
tached in  pending  causes.  Barnes  v.  Undencoocl,  54  Ga.  88. 
Even  a  partial  jurisdiction  does  not  draw  the  entire  cogni- 
zance of  a  case  within  the  pow-er  of  the  court  necessarily. 
Thus,  where  the  validity  of  a  will  was  in  question,  and  suit 
was  brought  in  a  county  other  than  where  the  testator  had 
been  domiciled,  in  which  it  was  contended  that,  as  the  court 
had  jurisdiction  to  settle  with  the  executor  for  the  rents  and 
profits  of  the  land  of  the  estate,  and  to  decree  a  partition 
thereof  among  the  claimants,  it  had  also  acquired  jurisdiction 
thereby  to  inquire  into  the  validity  of  the  will,  which  was  an 
essential  prerequisite  to  partition.  But  the  court  held  that 
the  admixture  of  subjects,  concerning  some  of  which  the  court 
had  jurisdiction,  could  not  operate  to  confer  jurisdiction  of 
the  others;  for,  if  this  were  allowed,  there  would  be  no  diffi- 

(r)Lyman  v.  Lyman,  2  Paine  C.  (.^).Johnson   v.    Kimbro,   3   Head. 

C.4ti.  (Tenn.)  559. 

(Olbid;  2  Story  Eq.  Jiir.  H   743,  744. 
v.l— 8 


114  VENUE. 

culty  in  so  changing  the  jurisdiction  in  nearly  all  instances 
where  a  will  was  contested.  And  so  it  was  held  the  only 
jurisdiction  in  the  case  was  exhausted  in  entering  a  judgment 
for  costs  against  the  complainant;  and  this  rested  on  the 
ground  that,  although  the  court  had  no  right  to  try  the  valid- 
ity of  the  will,  yet  it  had  jurisdiction  to  try  similar  cases 
arising  within  its  own  territorial  limits.  («) 

In  Mississippi  it  is  declared  that  actions  of  ejectment  and 
trefipass  quare  elausum  freglt  are  the  only  actions  which  may 
be  brouglit  in  a  county  where  the  defendant  does  not  reside 
and  is  not  found. (r)  I  judge  usually  such  actions  cannot  be 
so  brought  elsewhere.  And,  more  especially,  an  action  in  the 
nature  of  a  review  cannot  be  brought  in  the  court  of  one 
county  to  reverse  a  judgment  rendered  in  the  court  of  another 
county.  Where  this  was  attempted,  on  the  ground  of  newly 
discovered  evidence  and  error  in  law,  it  was  declared  that 
such  proceeding  can  only  be  had  where  the  records  are:  that 
is,  in  the  court  which  rendered  the  judgment  sought  to  be 
reviewed. (/r)  And,  on  the  same  principle,  it  has  been  held 
that  a  bill  of  revivor,  concerning  an  action  relating  to  land, 
must  be  brought  in  the  court  where  the  records  are,  notwith- 
standing a  change  in  the  boundaries  of  the  county  has  brought 
the  land  into  another  county,  after  the  rendition  of  the  orig- 
inal judgment. (,r)  It  is,  moreover,  competent  for  a  legisla- 
ture to  provide,  in  establishing  a  new  county,  that  pending 
suits  in  ejectment  shall  not  be  disturbed,  even  as  to  lands 
falling  within  the  limits  of  the  new  county. (//) 

But,  as  above  stated,  where  a  court  has  jurisdiction  (as  in 
partnership  accounts)  of  the  persons  and  cause  of  action, 
proceedings  in  rem  may  attach  as  an  incidental  remedy,  so 
that  the  court  may  order  a  sale  of  lands  in  another  county,  as 
we  noticed  above  in  regard  to  lands  in  another  state. (>)  And, 
on  the  other  hand,  "if  there  are  equities,  arising  from  con- 

{»/)Moran    «.    Masterton,    11    B.  (.r)Arnold  v.  Styles,  2  Blackf.  3!13. 

Mon.  (Ky.)  20.  (^).Jackson   v.   Dains,    2    Cowcn, 

(«)Elder    «.    Hilzheim,   35    Miss.  (N.  Y.)  526. 

243.  (.-)Webb  v.  Wright,  2  Bush,  (Ky.) 

(w)Pari.«h  v.  Marvin,  15  Wis.  248.  126. 


"  VENUE.  115 

tract  or  by  operation  oi'  law,  by  virtue  of  which  a  party  is 
entitled  to  subject  specific  property,  real  or  personal,  to  sale 
for  the  purpose  of  satisfying  a  debt,"  jurisdiction  in  rem  may 
be  taken,  even  when  both  parties  reside  out  of  the  jurisdic- 
tion, "Whenever  it  becomes  necessary  for  the  decree  to  act 
upon  the  thing,  (directly,)  upon  the  particular  property,  the 
jurisdiction  attaches  to  the  thing,  abides  with  it,  and  can 
only  be  brought  into  action  by  suit  where  the  thing  is;"^*)* 
even  if  all  the  parties  reside  elsewhere,  as  in  trespass  quare 
/regit.     Goram  v.  Merry,  65  Me.  1H8. 

§  118.  Where  a  case  is  pend'ng  in  a  defendant's  own 
county,  a  judge  has  not  power  to  compel  the  defendant  to 
appear  before  him  at  chambers,  in  another  county,  to  answer 
interrogatories  with  a  view  to  apj^ointing  a  receiver  of  the 
property  in  dispute,  since  "parties  have  rights  which  may  not 
yield  even  to  judicial  convenience,  "(/j)  Nor  can  a  court,  in 
Illinois — nor,  perhaps,  anywhere  else — send  its  process  into 
another  county  in  a  suit  on  a  promissory  note,  by  an  as- 
signee against  an  assignor,  merely  on  the  ground  that  the 
note  was  executed  and  indorsed  in  the  foreign  county. (c) 
Yet,  in  that  state,  by  statute,  a  summons  may  be  sent  into 
another  couijty  where  there  are  two  defendants  and  one  re- 
'  sides  in  the  county  where  suit  is  brought.  So  in  Kentucky  ;(rf) 
and  in  Georgia,  where  it  is  held  that  an  acceptor  may  hold  the 
drawer  and  indorser  of  a  draft  as  joint  promissors,  and 
therefore  bring  suit  in  a  county  where  either  resides.  Ross 
V.  Saidshury,  52  Ga.  380.  But  in  Illinois  it  was  formerly 
held  that  a  place  of  payment,  if  specifically  set  out,  and 
suit  was  brought  within  the  county  where  payment  was  to 
be   made,   would    of    itself   authorize  sending    process    into 

(<7)rjatrobe  e.  Hayward,  13  Flor.  of  applying  for  the  decree.     Wliit- 

203.  comb  «.  Whitcomb,  46  la.  437. 

*Divorce   is   regarded  as  a  pro-  And,  indeed,  this  is  the  general 

ceeding  in  rem  because  it  fixes  the  rule  in  all  cases  as  to  venue.  Church 

status  of  persons.     But  where  the  v.  Grossman,  49  la.  444. 

statute  requires  tlie  residence  of  the  (J)Cook  v.  Walker,  15  Ga.  466. 

applicant,  it  means  a  bona  fide,  per-  (c)Maxwell  v.  Vansant,  46  111.  60. 

manont  residence,  and  not  a  tempo-  (d)Uyer8  v.  Lindsay,  5  Bush,  507. 
rary  residence  for  the  mere  purpo.se 


116  VENUE. 

another  county,  since  it  was  held  that  "the  court  in  such  case 
had  jurisdiction  without  regard  to  the  residence  of  the 
parties.  It  was  the  place  of  payment  which  controlled  the 
jurisdiction*  and  authorized  process  to  issue  to  a  foreign 
county  against  the  debtor. "(<;)  In  Georgia,  in  cases  of  lien,  a 
summons  may  issue  in  the  county  where  the  property  is,  and 
be  made  returnable  where  the  defendant  resides.  Thorpe  v. 
Foster,  52  Ga.  80.  Where  a  statute  does  not  authorize  serv- 
ice of  summons  in  transitory  actions  wherever  the  defendant 
is  found  in  a  count}'  where  he  does  not  reside,  no  action  can 
be  commenced  in  such  foreign  county  merely  in  order  to  be 
removed  to  the  county  where  a  trial  may  be  had.  Hayuoocl 
V.  Johnson,  41  Mich.  ,">98 ;  Barnard  v.  Hinkley,  10  Mich.  4.58; 
Insurance  Co.  v.  Judge,  23  Mich.  492. 

§  119.  Where  one  obtained  a  judgment  against  two  defend- 
ants, and  levied  on  property  belonging  to  one  in  one  county, 
and  on  personal  property  belonging  to  the  other  in  another 
county,  where  he  resided,  but  where  the  plaintiff  did  not 
reside,  and  the  owner  filed  a  bill  to  compel  a  release  of 
the  levy,  on  the  ground  that  it  was  made  in  fraud  of  an 
agreement,  and  claimed  that  the  levy  gave  jurisdiction  over 
the  person  of  the  plaintiff  in  the  original  action,  it  was  held 
the  levy  had  no  such  effect,  and  the  court  could  not  entertain 
the  complaint  without  personal  service. (,/) 

§  120.  The  matter  of  boundaries  may  come  before  the 
courts  in  determining  the  question  of  venue. f  In  New  York 
the  statute  j)rovides  that  when  an  offence  is  committed  on  a 

*Thus,where  a  banker's  certificate  in  the  latter  county,  when  the  stat- 

of  deposit  was  by  its  terms  payal)Ie  ute  merely  provides  that  a  written 

at  a  certain  date,  "  on  the  return  of  contract  may  be  sued  on  where  exe- 

the  certificate,"'  it  was  held  to  be  cuied.     Hatch  v.  .Johnson,  44   la. 

payable  wliere  the  bank  was  located,  536.     The  present  rule,  in  Illinois, 

and  that  an  action  on  it  should  be  is,  I  think,  more  fair  and  equitable, 

instituted  there,  and  not  where  the  namely,  suit  may  be  brought  in  any 

banker     resided.        Sanbourne     v.  county  where  personal  service  can 

Smith,  44 la.  152.     But,  where  there  be  had  on  the  defendant, 
wasa  verbal  contract  that  payment  (f) Waterman  v.  Peet,  11  111.  649. 

for  goods  should  be  made  at   the  (/jMays?).  Taylor,  7  Ga.  24iJ. 

place  of  sale,  the  purchaser's  resi-  tWhen  a  stream  is  the  boundary, 

dence  being  in  another  county,  it  it  continues  .so  not^ith^tandin^'  a 

■was  held  the  action  must  be  brought  change  of  place  by  a  gradual  wear- 


VENUE.  1  1  7 

boundary  line,  or  within  five  hundred  yards  of  it,  the  olfeiuler 
may  be  indicted  in  either  county.  And  it  is  held  that,  under 
that  statute,  it  is  not  requisite  that  the  indictment  should 
allege  the  commission  of  the  offence  in  the  county  where  the 
prosecution  is  pending.  It  is  sufficient  that  it  shows  juris- 
diction in  the  grand  jury  finding  the  indictment  and  in  the 
court. (f/)  In  Minnesota,  under  a  similar  statute,  the  indict- 
ment may  allege  the  place  to  have  been  in  the  adjoining 
county,  within  one  hundred  rods  of  the  boundary  line. (/i)  A 
similar  statute  exists  in  Illinois  and  probably  in  other  states. 

In  Iowa  it  has  been  held  that  where  one  county  incurs 
expense  in  prosecuting  a  crime  committed  near  the  border  of 
another,  and  within  its  limits,  the  county  where  the  prosecu- 
tion takes  place  cannot  recover  the  exj)ense  from  the  county 
wherein  the  crime  occurred.  Floyd  Comity  v.  Cerro  Gordo 
County,  47  la.  186. 

§  121.  The  place  of  the  sitting  of  the  court,  however,  is 
not  so  rigidly  fixed  as  that  all  proceedings  in  another  room 
are  unauthorized  and  void — one  court  remarking,  quaintly, 
that  it  would  hardly  be  pretended  that  it  is  "sacramental"  to 
use  one  room  rather  than  another  in  holding  open  court. (i) 
But  a  removal  to  another  town  within  the  county,  unauthor- 
ized, will  fatally  vitiate  all  proceedings. (j)  A  judge  may  sign 
an  order  outside  of  his  territorial  jurisdiction,  if  it  be  an 
order  which  can  be  granted  at  chambers,  on  an  ex  parte  ap- 
plication, (/c)  Yet,  final  jurisdiction  is  always  conferred  on 
courts,  and  not  upon  judges  at  chambers. (Z)  See  chapter 
XVI.,  on  Terms  of  Court. 

inc;  of  the  banks.     But  if  it  suddenly  constjiied  so  strictly  as  to  make  a 

makes  a  material  change,  as  by  a  subsequent  term,  held  at  the  former 

"  cut-off,"  the  boundary  remains  in  seat,  illegal,  when  suitable  conven- 

the  abandoned  channel.     Collins  v.  iences  have  not  been  provided  at 

State,  3  Tex.  Ct.  of  App.  .323.  the  new  county  seat.     Bouldin  v. 

(/7)  People  V.  Davis,  56  N.  Y.  100.  Ewart,  63  Mo.  330. 

(//)State   V.    Kobinson,   14  Minn.  (/)Northrup  v.  People,  37  N.  Y. 

44'.  <.  204. 

(/)Smith  «.  Jones,  23  La.  An.  44.  (/-jSuccession   of  .Tacob    Weizel, 

And   where   a    state    removes  a  17  La.  An.  70. 

county  seat,  and  tiie  act  is  to  take  (/)I}oard  of  Education  v.  Scovillc, 

effect  on  its  passage,  it  is  not  to  be  13  Kan.  32. 


lis  CHANGE    OF    VENUE. 


CHAPTEE  XV. 

CHANGE    OF    VENUE. 

§  122.  Transfer  of  cause  to  another  tribunal. 

12'6.  Cause  for  change  of  venue — prejudice. 

124.  Cause  of  action  arising  in  another  county 

125.  Convenience  of  witnesses. 

126.  Must  be  in  accordance  to  statute. 

127.  Discretion  of  the  court. 

128.  JSotise  to  change. 

129.  Cliange  to  remote  county. 

130.  Parties  to  application. 

131.  Provisional  courts. 

§  123.  There  are  various  circumstances  which  may  author- 
ize and  even  require,*  the  transferring  of  a  cause  to  the 
jurisdiction  of  another  tribunal  to  be  tried.  This  is  not  to 
rectify  a  mistake  in  the  place  of  bringing  an  action;  for, 
where  a  wrong  venue  is  laid,  it  is  a  subject  of  demurrer,  if 
apparent,  or  otherwise  of  a  plea  in  abatement;  or,  in  some 
states,  it  will  nonsuit  the  plaintiff  at  the  trial. (a)  Some- 
times, however,  a  want  of  jurisdiction  of  subject-matter  will 
justify  a  transfer,  instead  of  a  dismissal;  as  in  an  action 
against  a  tenant  for  unlawfully  holding  over — of  which  the 
court  has  jurisdiction — but  in  which  a  distinct  and  direct 
issue  of  title  is  raised,  of  which  the  court  cannot  take  cog- 
nizance; (b)  or,  in  like  manner,  where  an  action  of  trespass 
is  brought  in  a  police  court,  and  the  question  of  title  arises — 

*Counter  affidavits  may  be  filed  changes  of   venue  are  in  general 

under  an  application  for  a  change  discretionary,  even  if  there   is  no 

of  venue ;  and  where  this  is  done,  counter  affidavit.      State   v.   Spur- 

the  granting  or  refusing  the  mo-  beck,  44  Id.  667. 

tion   Is   di-scretionary  ;   and   unless  (a)Morgan  «.  Lyon,  12  Wend.  (N. 

the  discretion  is  abused,  a  supreme  Y.)  266. 

court  will    not   review  the  decree.  (Z»)Henderson  «.  Allen,  23  Cal.520. 
Hall  V.  Barnes,  82  111.  228.    In  Iowa 


CHANGE    OF    VENUE.  119 

altliougli  in  Massiicliusetts  the  rciuoval  in  such  case  seems 
subject  to  the  defendant's  option.! c) 

Yet  it  has  been  held  that  where  a  statute  requires  a  bill 
in  chancery,  relating  to  lands,  to  be  filed  in  the  county 
where  the  land  lies,  an  equitable  court  may  retain  its  juris- 
diction to  decree  the  sale  of  real  estate  in  another  county,  so 
far,  at  least,  as  that  it  cannot  be  collaterally  questioned,  if  it 
has  jurisdiction  on  general  equitable  principles,  independently 
of  the  special  and  local  jurisdiction  given  by  the  statute. (r/) 

§  123.  The  most  usual  and  imperative  cause  for  changing 
a  venue  proper  in  itself  is  that  an  impartial  trial  may  be 
thereby  secured.  This  may  be  based  on  the  alleged  ground 
that  the  judge  is  prejudiced.  But  the  application  in  such 
case  must  be  timely.  The  Wisconsin  statute  requires  that, 
in  a  criminal  case,  "such  change  shall  not  be  awarded  after 
the  next  term  succeeding  that  at  which  the  accused  shall 
have  been  arraigned,  unless  such  petition  states  facts  show- 
ing the  existence  of  prejudice  on  the  part  of  the  judge  un- 
known to  the  petitioner  at  any  term  of  the  court  prior  to  the 
making  and  filing  of  such  petition. "(«)  And  the  right  to 
apply  for  a  change  of  venue  may  be  waived  by  mere  delay 
to  apply  early  in  the  pending  term.  R.  R.  v.  Mitchell,  74  111. 
394.  And  especially  by  suffering  two  successive  defaults — 
the  first  default  having  been  set  aside,  and  an  application  for 
changing  the  venue  coming  after  the  defendant  is  again  de- 
faulted. Bank  v.  Krance,  50  la.  236.  But  in  this,  as  in  other 
changes,  I  suppose,  the  jurisdiction  of  the  court  would  not  be 
ousted  merely  by  a  failure  to  enter  a  transcript  of  the  record 
on  the  minutes  of  the  court  at  the  first  term.(/) 

General  prejudice,  also,  is  a  ground  of  change.  Where 
this  is  the  ground  it  is  not  necessary  to  specify  facts.  A 
general  allegation  of  the  existing  prejudice  is  sufiicient  be- 
cause of  the  vague  and  indefinite  nature  of  even  actual  and 
general  prejudice  existing  in  a  community  at  large.     Taylor 

(c)Leary  v.  Keagan,  115  Mass.  558.  (<')State  v.  Rowan,  35  Wis.  305. 

(fZ)Britain  v.  Cowan,  5  Humph,  (/^Calhoun  v.  State,  4  Humph. 

f(Tenn.)  316.  477. 


120  CHANGE    OF    VENUE. 

V.  Gardiner,  11  R.  I.  182.  As,  where  a  jury  cannot  be  im- 
paneled,(^)  or  the  people  are  prejudiced  against  a  prisoner.(/i) 
And  it  is  imperative  where  the  facts  appear. (i)  Indeed,  usu- 
ally, the  court  has  no  discretion,  (^■)  and  parties  may  change, 
by  consent,  without  a  petition  to  the  court, (A;)  in  a  civil  case. 

It  is  held  that  in  actions  at  law  a  change  of  venue  for  the 
prejudice  of  the  judge  cannot  be  had  on  the  apiDlication  of 
some  only  of  several  defendants,  whether  joining  or  severing 
in  their  defences;  but  all  must  unite  in  the  application. 
Rupp  V.  Swineford  et  al.  40  Wis.  28.  A  recusant  witness, 
however,  cannot,  in  proceedings  for  -contempt,  apply  for  a 
change  of  venue  on  account  of  alleged  prejudice  of  the  judge 
or  justice  of  the  peace.     State  v,  Neicton,  62  Ind.  517. 

But,  in  a  criminal  case,  while  the  place  of  trial  is  changed, 
the  indictment  may,  as  to  venue,  remain  unchanged. (/)  In 
New  York,  even  the  prosecution  has  a  right,  in  order  to  secure 
an  impartial  trial,  to  remove  a  criminal  case,  by  certiorari,  to 
a  higher  court;  and,  moreover,  where  a  cause  is  removed  as 
to  one  of  several  defendants  it  will  be  removed  as  to  all, 
although  the  defendants  are  entitled  to  a  separate  trial. (m) 
And,  in  such  case,  the  indictment  itself  may  be  removed, 
making  a  total  instead  of  a  partial  transfer,  as  where  a  trial 
is  changed  but  the  indictment  not. 

In  New  York,  where  tliere  have  been  two  trials  in  a  civil 
case,  and  disagreement  of  the  jury  in  each,  and  it  is  apparent 
that,  on  account  of  prevailing  excitement,  a  trial  cannot  be 
had,  a  motion  for  change  of  venue  will  be  granted. (w)  But 
there  is  no  necessity  of  an  experiment  in  a  criminal  case  by 
trying  the  cause  or  impanelling  a  jury  therein,  in  order 
to  justify  a  public  prosecutor  in  taking  a  change   on  the 

(5r)Ibid.  (wi)People  v.  Baker  et  al.  3  Park 

(/OClark  «.  People,  1  Scam.  120.  Grim.  188. 

(«)Burrows  v.  People,  11  111.  121.  In  Louisiana,  by  statute,  a  prose- 

(;■) Walsh®.  Ray,  38  111.  30.  cuting   attorney  may  apply  for   a 

(A;)Picrson  v.  Finney,  37  111.  29.  change  of  venue.     State  «.  McCoy, 

(Z)  People  V.  Vermilyea,  7  Co  wen,  29  La.  An.  593.     And  see  below. 

1C7.  (7i)Messenger     «.      Holmes,     12 

Wend.  203. 


I 


CHANGE    OF    VENUE.  121 

ground  that  a  fair  ami  impartial  trial  cannot  be  had,(o)  as 
in  a  case  of  libel.  And,  on  the  other  hand,  it  is  not  indis- 
pensable that  there  should  have  been  an  ineffectual  attempt 
to  obtain  a  jury  in  order  to  justify  defendants  in  a  criminal 
case  to  apply  for  a  change. (/>») 

§  124.  In  New  York,  another  ground  for  changing  venue  is 
that  the  cause  of  action  arose  in  another  county.  And  a 
motion  on  this  ground  by  a  defendant  is  imperative,  unless 
the  plaintiff"  will  stipulate  to  give  material  evidence  in  the 
county  where  suit  is  brought,  which  may  defeat  the  applica- 
tion, (r/)  But  this  whole  matter  seems  anomalous  and  in  con- 
travention of  the  general  rule  as  to  transitory  actions,  and 
sometimes  actually  takes  on  the  form  of  balancing  and  bar- 
gaining, (r)  And  by  statute  in  New  York,  the  supreme  court 
may  draw  a  pending  cause  to  itself  in  order  to  change  the 
venue.      Quinu  v.  Van  Pelt,  12  Hun.  G82. 

§  125.  Another  similarly  anomalous  ground  of  change,  in 
the  same  state,  is  that  for  the  convenience  of  witnesses,  not, 
however,  availing  in  strictly  local  actions. (s)  Where  appli- 
cation is  made  herein  it  should  appear  what  it  is  expected  to 
prove  by  the  witnesses. (f) 

Where  a  change  is  made  by  a  public  prosecutor,  on  the 
ground  of  prejudice,  and  it  appears  in  opposition  to  the 
application  that  the  defendants'  witnesses  are  poor,  a  change 
may  be  granted  and  the  condition  imposed  that  the  prosecutor 
shall  make  provision  to  pay  the  necessary  expenses  of  such 
witnesses.  (») 

The  nature  of  the  action  is  immaterial  in  such  a  case, 
except  it  must  be  transitory.  The  ground  is,  the  number  and 
residence  of  witnesses,  and  their  value  in  the  cause. (r)  But 
an  application  may  be  resisted  on  the  ground  that  the  plain- 

(o)Peoplew.  Webb,  mill,  179, (the  (/-jWoods    v.     Van     Rauken,     1 

celebratedJ.Fennimore  Cooper  libel  Caines,  122. 

case.)  (.s)Park   v.  Carnley,  7   How.   Pr. 

(p) People  ti.lt.  R.  Co.  (indictment.s  355. 

for  public  nuisance,)  4  Park  Crim.  ()!) American    Exchange   Bank  e. 

€(•::.  Hill,  22  How.  Pr.  29. 

r/jHentley  v.   Weaver,    1   Johns.  (w) People*).  Baker,  3  Park Cr.  181. 

:  ases,  241.  (t)jAnonyniou.s,  1  Hill,  (JUS). 


122  CHANGE    OF    VENUE. 

tiff  has  witnesses  in  the  county  where  the  venue  is  laid.(»-) 
And  the  mere  residence  of  witnesses  is  not  sufficient ;  it  must 
also  be  shown  that  evidence  will  be  given  where  the  cause  is 
to  be  removed  of  some  material  fact  which  happened  there. (x) 
That  witnesses  reside  near  where  the  venue  is  to  be  removed, 
but  out  of  the  state,  is  no  sufficient  ground  of  change. (?/) 
Where  the  venue  is  properly  laid,  a  motion  to  change  should 
1)0  made  after  issue  joined,  otherwise  not. (2')  But  how  vastly 
better  is  the  deposition  arrangement,  resident  and  non-resi- 
dent, is  evident  at  a  glance,  I  think;  being  more  direct,  and 
less  expensive  and  dilatory. 

§  126.  It  is  a  general  principle  that  the  transfer  of  a  cause 
must  be  in  the  exact  manner  prescribed  by  statute. (a)  And 
where  only  a  part  of  the  proceedings  necessary  is  perfected, 
the  jurisdiction  is  not  transferred — as,  for  instance,  where  one 
fails  to  have  the  cause  duly  entered  in  the  court  to  which  venue 
is  sought  to  be  changed,  or  even  sometimes  where  the  clerk  is 
not  paid  the  entry  fee. (ft)  Nothing  but  an  actual  removal,  in 
accordance  with  the  statute,  can  impair  an  already  duly  at- 
tached jurisdiction. (c)  A  mere  order  of  transfer  does  not 
divest  it;  nor  has  the  substituted  court  any  jurisdiction  until 
the  papers  reach  the  clerk  thereof ;  (J)  nor,  in  a  criminal 
case,  (in  Texas,)  unless  the  defendant  be  recognized  to  appear 
before  the  court  to  which  the  venue  is  changed. (c) 

But,  where  a  transfer  is  fully  made,  the  substituted  court,  in 
a  civil  case,  has  as  plenary  power  over  the  case  as  if  origi- 
nally commenced  there;  and,  where  the  records  of  one  court 
are  transferred  to  another,  judgments  formerly  rendered  in  the 
prior  court  are  under  the  same  control  as  judgments  rendered 
in  the  succeeding  tribunal. (/) 

§  127.  Accordingly,  courts  may  refuse,  as  well  as  grant,. 

(?r)Du  Boys  v.  Fronk,  3  Gaines,  (a)West  t>.  State,  use,  etc.,  2  Eng. 

Itf).                 '  293. 

(xlGourley*.  Shoemaker,  1  .Johns.  (d)Rice  «.  Nickerson,  4  Allen,  67. 

C"as.  392.  (c)McMurray's  Adm'r  v.  Hopper. 

(2/)Canfield  v.   Lindley,    4   Cow.  43  Pa.  St.  469. 

532.  ((i) Simpson  v.  Call,  13  Flor.  337. 

(s)Hubbard  «.  Ins.  Co.  2  How.  Pr.  (e)State  v.  Butler,  38  Tex.  560. 

152.  (/)Clark  v.  Sawyer,  48  Cal.  138. 


CHANGE    OF    VENUE.  123 

changes  of  venue  where  the  imperative  statutory  requirements 
are  not  met.  And,  in  some  cases,  a  sound  discretion  is  to  be 
exercised;  as,  for  example,  the  probable  dispatch  or  delay  of 
suits,  on  change,  where  the  ground  of  application  is  the  con- 
venience of  witnesses. ((/)  And  where,  on  the  ground  of  prej- 
udice, a  change  is  sought,  a  court  will  not  presume  that  an 
impartial  trial  cannot  be  had  merely  because  the  parties  dif- 
fer in  politics,  and  there  is  a  strong  party  spirit  bearing 
against  the  applicant.  The  requisites,  in  such  a  case,  are 
something  like  this:  that  the  inhabitants  had  prejudged  the 
question  at  issue,  or  were  especially  interested  in  it,  or  that, 
for  certain  reasons,  they  entertained  personal  iH'ejudice,  or 
that  the  opposite  party  was  a  person  of  uncommon  influence 
in  that  community. (//)  In  a  turnpike  case,  a  cause  will  not 
be  changed  because  of  an  allegation  that  the  disposition  of  the 
people  is  averse  to  turnpikes, (i)  nor  any  cause,  as  libel, 
merely  because  there  is  a  strong  excitement  prevailing  as  to 
the  subject-matter  of  the  suit.(;)  Hence,  the  mere  fact  that 
a  county  is  the  plaintiff,  in  an  action  for  the  recovery  of  a 
forfeiture,  is  not  a  sufficient  ground  for  an  application  ta 
change  the  venue.     State  v.  Merriheir,  47  la.  112. 

Where  the  motive  is  evidently  delay,  a  motion  may  properly 
be  refused;  as  where  a  plaintiff  agreed  to  the  defendant's 
desire  for  change,  on  condition  that  he  would  accept  short 
notice  for  trial,  which  the  defendant  refused,  without  showing 
that  he  could  not  prepare  for  trial  on  short  notice. (/i)  And  so 
an  application  must  be  timely,  and  laches  will  waive  a  right 
of  change.  Hoffman  v.  Sparling,  12  Hun.  83;  Qiilnn  v.  Van 
Pelt,  Id.  633. 

It  is  held,  in  New  York,  that  in  an  action  in  the  nature  of 
a  quo  warranto  the  place  of  trial  may  be  laid  anywhere  in  the 
state,  on  the  ground  that  the  people  are  a  party  whose  resi- 
dence is  co-extensive  with  the  state ;  and  so,  where  such  an 
action  was  pending  against  one  for  an  alleged  usurpation  of 

l.9)King  ».  Vanderbilt,?  How.  Pr.  (?)Turnpike    Co.    v.    Wilson,    3 

3sr).  Caines,  127. 

(A)Zobieskie  v.  Bander,  1  Cainea,  (jjBowman  «.  Ely,  2  Wend.  251. 

488.  (Z-)Smith  v.  Prior,  9  Wend.  499. 


121 


CHANGE    OF    VENUE. 


the  office  of  state  treasurer,  it  was  held  that  he  could  not  be 
allowed  a  change  on  the  ground  that  he  resided  in  another 
county  at  the  commencement  of  the  suit.(Z)  I  am  unable  to 
perceive  the  reason  of  this.  The  reason  assigned  does  not 
seem  to  be  adequate,  or  even  appropriate. 

§  128.  Where  an  act  of  the  legislature  transfers  causes 
from  one  court  to  another,  the  act  itself  is  notice  to  the  par- 
ties, (/n)  In  changes  made  hj  application  of  a  party,  it  may 
be  necessary  to  serve  notice  of  the  rule  for  change. (//) 
But  not  even  this,  in  most  states,  I  presume.  But  where  it 
is  required  it  is  imperative.      Taylor  \.  Lucas,  43  Wis.  156. 

§  129.  In  general,  venue  is  changed  to  an  adjoining  county  ; 
but  it  may  be  changed  to  a  remote  county  when  necessary,  (o) 
But  if  to  a  remote  county  the  entire  removal  must  be  made 
at  once,  since  successive  changes  are  not  allowable  at  the 
instance  of  the  same  party.  Each  party  exhausts  his  right 
by  a  single  exercise  of  it,  (Hutts  v.  Hutts,  62  Ind.  240,)  un- 
less the  cause  on  which  a  second  application  is  based  is 
shown  not  to  have  existed  when  the  first  change  was  granted. 
Schaentgen  v.  Smith,  48  la.  359. 

Thus  the  New  York  criminal  court,  so  holding,  remarked : 
"However,  there  is  no  express  limitation;  and  if  the  necessity 
T7hich  may  require  any  change  should  call  for  a  more  remote 
county  that  should  be  selected.  In  this  case  it  is  probable 
that  the  constant  intercourse  between  the  inhabitants  of  New 
York  and  the  adjoining  counties,  and  the  free  circulation  of 
the  newspapers  of  the  city  in  its  vicinity,  have  effected  an 
extensive  coincidence  of  sentiment,  and  the  embarrassment 
in  obtaining  a  fair  and  impartial  trial  in  an  adjoining  county 
would  be  very  great.  I  must,  therefore,  direct  that  the  trial 
shall  be  had  in  a  remote  county,  "(o)  But  there  cannot  be  a 
second  change  in  the  same  cause.  State  v.  McGeghan,  27 
Ohio  St.  284.     (See  preceding  paragraph.) 

Sometimes,  by  statute — as  in  Illinois — a  change  of  venue 
in  an  action  pending  before  a  justice  of  the  peace  takes  it 


(Z)People  V.  Cook,  6  How.  Pr.  44S. 
(m)Shean  v.  Cunninirliam,  6  Bush, 
124. 


(n) Smith  «.  Sharp,  13  .Johns.  466. 
(o)Feople  v.  Baker,  3  Park  Crim. 
198. 


CHANGE    OF    VENUE.  125 

imperatively  to  the  nearest  justice.  In  Minnesota  a  cause 
cannot  be  thus  removed  on  the  ground  of  prejudice.  But  this 
is  exceptionaL(p) 

§  130.  It  is  a  general  principle,  I  judge,  that  where  there 
are  joint  defendants  they  must  all  unite  in  an  application  in 
order  to  change  the  venue,  (r/)  and  it  is  held,  accordingly,  that 
where  the  maker  and  indorsers  of  a  promissory  note  are  sued 
together,  the  indorsers  alone  cannot  successfully  apply  for  a 
change  of  venue;  the  maker  must  also  apply. (r)  But  the  rule 
is  different  where  one  of  them  has  suffered  a  default  ;(.s)  and, 
in  such  case,  the  whole  cause  is  removed. (^) 

§  131.  It  has  been  held  that  where  provisional  courts  are 
established  because  of  the  necessities  arising  from  a  state  of 
war,  and  these  courts  entertain  jurisdiction  of  suits  which 
are  pending  when  the  regular  courts  are  re-established,  this 
jurisdiction  will  not  be  lost,  or  ousted,  merely  by  the  re- 
establishment  of  the  regular  courts.  (**)  This,  however,  rather 
pertains  to  an  ousting  of  jurisdiction  than  to  a  mere  change 
of  venue.     See  chapter  X.,  supra. 

(p)Cooper  V.  Brewster,  1  Minn.  96.  (<)Wiglit  v.  Meredith, 4  Scam.  360 ; 

(g)Sailly  v.  Button,  G  Wend.  508;  Hitt  «.  Allen,  13  III.  592. 

Rupp  «.  Swineford,  supi-a.  (M)Reynolds  v.  McKenzie,  Phill. 

(r)Legg«.Dorsheim,19  Wend.700.  Eq.  (JST.  C.)  54. 
(e)Chacet>.  Benham,  12  Wend.  198. 


126  TERMS    OF    COURT. 


CHAPTEE  XVI. 

TERMS    OF   COURT. 

4  132.  Must  be  as  prescribed  b}^  statute. 

133.  What  is  a  compliance. 

134.  Mistake  in  statute — discretion  of  judge. 

135.  Extension  of  terra. 

13G.  Change  by  .statute — notice  to  parties. 

137.  When  term  is  to  be  extended. 

138.  Term  regarded  as  one  da}'. 

139.  Ettect  of  lapse  of  a  term  as  to  sureties  on  a  recognizance. 

§  132.  When  a  statute  prescribes  a  term  time,  it  is  essen- 
tial to  the  jurisdiction  that  it  should  be  exercised  at  that 
time ;  and  if  it  transacts  business  at  a  different  time,  its  pro- 
ceedings will  be  void.  Different  courts  may  be  assigned  to 
different  terms,  notwithstanding  a  constitutional  provision 
that  all  laws  concerning  courts  shall  be  uniform.  Karnes  v. 
The  People,  73  111.  274.  The  rule  is  that  where  the  law 
authorizes  a  court  to  do  an  act  it  is  meant  that  the  court, 
in  term  time,  must  do  it,  and  not  the  judge,  in  vacation. 
That  is,  a  court  has  no  jurisdiction,  even  with  consent  of  par- 
ties, to  enter,  in  vacation,  a  decree  as  of  a  past  term,  where 
a  statute  does  not  so  provide  expressly.  Puget  Soitnd  Agrl 
Co.  V.  Pierce  County,  1  Wash.  Ter,  75.  And,  on  like  principle, 
where  a  statute  limits  a  time  for  an  appeal,  consent  of  jmrties 
cannot  waive  it  so  as  to  give  jurisdiction  to  an  appellate 
court.  Stark  v.  Jenkins,  Id.  421.  And  so,  unless  expressly 
authorized  by  law,  a  judge  has  no  authority  to  appoint  a 
receiver  in  vacation.  Newman  v.  Hammond,  46  Ind.  119. 
Although  if  the  term,  by  mistake,  begins  a  week  too  soon,  the 
transactions  of  the  second  week  will  be  valid. (a)     However, 

(a)Garlick  v.  Dunn,  42  Ala.  404. 


TERMS   OF    COURT.     '  127 

"there  are  courts  reqiiiretl  to  be  kej^t  open  all  the  time  for  cer- 
tain purposes.  (/;) 

§  133.  If  a  term  is  to  ojjen  on  Monday,  by  the  statute,  it 
has  been  held  in  Tennessee  (c)  a  sufficient  compliance  if  it 
opens  on  Tuesday,  on  the  ground,  it  seems,  that  it  will  l)e  pre- 
sumed that  an  adjournment  occurred  from  Monday  to  Tues- 
day, in  the  regular  way;  and  adjournments  will  always  be 
presumed  when  necessary  to  support  the  validity  of  proceed- 
ings had.((^)  And  so,  where  the  law  allows  a  court  to  adjourn, 
before  the  close  of  a  term,  to  a  period  beyond  the  limits  of 
the  term,  or  where  it  adjourns  before  the  close  of  the  time 
limited  until  the  next  term,  the  adjournment  thus  is  to  be 
regarded  as  wholly  discretionary,  and  reasons  for  it  need  not 
be  given,  unless  under  a  statute  expressly  requiring  the  reasons 
to  be  stated. (tf)  And  it  may  properly  be  left  to  the  discretion 
of  a  judge  to  appoint  special  terms,  where  the  business  requires 
it ;  and  then  these  have  all  the  force  of  law,  as  the  regular 
terms  have.(/)  And  it  may  be  so  as  to  a  supreme  court. 
.Moore  V.  Paclarood,  5  Oreg.  32.5. 

The  presumj)tion  of  regularity,  however,  fails  under  a  pro- 
tracted postponement  of  opening  the  term ;  as,  for  example, 
where  a  judge  attempted  to  hold  the  regular  term  seventeen 
days  after  the  time,  it  was  held  that  the  term  had  lapsed, 
and  all  the  proceedings  were  coram  nonjndlce,  and  void.(r/)  But 
if  a  term  fails,  all  causes  are  continued  till  court  in  course, 
(Whitman  v.  Fislicr,  74  111.  147;)  and  if  by  accident,  as  by 

(('y)State  ex  rel.  «.  Judge,  21   La  jKljour.nurnt      Willis  «.  Elam,   28 

An.  733.  La.  A.n.  857. 

(c)Henslie  v.  State,  3  Heisk,  202.  Where  there  !.«  no. sucli  limitation 

(d)Tallmt  J).  Hopper,  42  Cal.  398;  by  statute  a  term  continues  until 

Springbrook  Uoad,  64  Pa.  St.  45]  ended  bj-^  tinal   order  of   adjouru- 

(e)C"asily  v.  State,  32  Ind.  64.  nient,  or  by  the  expiration  of  the 

And  so  it  is  held  in  Louisiana,  period  prescribed  by  law,  and  the 

that,  where  a  statute  limits  an  ad-  sittings  of  the  court  are  within  the 

journment  as  to  time,  a  judge  may  ab.solute  discretion   of    the   court. 

adjourn  for  that  period,  and  then  Laiiadie  v.  Dean,  47  Tex.  90. 

immediately   adjourn    again    for  a  (/jBlimm  «.  Commonw.  7  Bush, 

like  period,  if  the  statute  does  not  32>'t. 

in   terms   prohibit   more  than  one  ((/)State  «.  Roberts,  8  Kcv.  239. 


128  TERMS    OF    COURT. 

fire,  rendering  it  impossible  to  provide  a  suitable  place  to 
meet.     Larkins  Case,  21  Nev.  90. 

§  134.  Where, by  mistake,  a  law  requires  court  to  beheld 
in  two  places  in  the  circuit,  on  the  same  day,  it  is  in  the  dis- 
cretion of  the  judge  to  select  which  one  he  will  hold;  and 
under  this  election  the  proceedings  will  be  valid,  (/i) 

§  135.  An  adjourned  term  (not  special)  is  not  distinct,  or 
indejDendent,  but  a  continuance  or  prolongation  of  the  present, 
and  so  an  order  of  continuance  to  the  next  term  passes  the 
case  to  the  next  regular  term;  and  it  was  held  error,  in  one 
case,  to  try  it  at  such  adjournment,  when  it  had  by  consent 
been  continued  to  the  next  term.(/) 

A  judge  cannot  voluntarily  extend  a  term.  Lilly's  Case,  7 
S.  C.  372.  And  the  expiration  of  a  term  usually  deprives  a 
court  of  all  control  over  its  judgments  and  decrees,  at  least  so 
far  as  the  merits  of  a  case  are  concerned,  its  jurisdiction  be- 
ing exhausted  by  the  close  of  the  term.  Milam  Co.  v.  Robert- 
son, 47  Tex.  222;  De  Castro  v.  Richardson,  25  Cal.  52;  Dan- 
iels V.  Daniels,  12  Nev.  121,  and  cases  cited.  And  it  has  no 
power  sua,  sponte  to  correct  its  judgment  at  a  subsequent  term, 
unless  for  a  mere  clerical  error,  {Daviess  Co.  Court  v.  How- 
ard, 13  Bush,  1(I2,)  nor  vacate  it;  Latimer  v.  Morrain,  43 
Wis.  107.  But  in  Iowa  the  supreme  court  can,  on  motion, 
vacate  a  judgment  at  a  succeeding  term,  because  there  is  no 
higher  court  to  review  it.     Drake  v.  Smijthe,  44  Iowa,  410. 

§  13(3.  Where  a  change  is  made  by  statute  as  to  the  time 
of  holding  a  term,  parties  in  court  or  served  with  process  are 
held  to  have  notice  and  are  bound  to  appear,  without  further 
service,  at  the  time  to  which  the  session  is  thus  changed.  (_/') 

§  137.  In  Indiana,  where  a  trial  is  pending  and  in  prog- 
ress at  the  time  fixed  by  law  for  the  expii-ation  of  the  term, 
the  term  is  deemed  to  extend  to  the  close  of  the  trial(/t) — a 
good  rule,  though  liable  to  abuse  if  not  guarded. 

{^)Brock  V.  Gale,  14  Flor.  531.  criminal  case.    Carroll  v.  Common- 

(«')H:\wyer  f).  Bryan,  10  Kan.  109.  wealth,  84  Pa.  St.  107.     A  court  is 

(_7) Insurance  Co.  v.  Dickerson,  28.  to  be  considered  always  open  as  to 

la.  274  a  case  submitted  to  a  jury.     Ed- 

(/l-)Dorsch«.Ro.senthall,39Ind.211.  wards   v.  Territory,  1    Wash.  Ter. 

And   so,   in   Pennsylvania,    in     a  195. 


TERMS    OF    COUUT.  120 

§  138.  A  term  of  court  is  regarded,  for  most  purposes,  as 
a  single  day,  so  that  any  recovery  therein  will  be  held  to 
relate  to  the  tirst  day  ;(7)  but  not  as  to  the  lien  of  judgments. 

§  139.  In  a  recognizance  the  lapse  of  a  term  will  not  dis- 
charge the  sureties;  but  the  recognizance  will  stand  contin- 
ued until  the  next  regular  term,  and  then  a  forfeiture  may  be 
taken  on  failure  of  the  principal  to  appear,  (m) 

(?)Manchester  v.  Herington,  10  N.  (m)Laiidis  v.  People,  39  111.  79. 

Y.  164. 


T.l— 9 


130  INCIDENTAL   JURISDICTION. 


CHAPTER  XVII. 

INCIDENTAL    JURISDICTION. 

$  140.  In  general. 

141.  Regulation  of  practice. 

142.  Publication  of  proceedings — power  to  prohibit. 

143.  Amendments,  discretionary. 

144.  Power  over  process  and  officers. 

145.  What  is  a  pending  suit. 

146.  Supplementary  proceedings. 

147.  Over  boats  in  navigable  waters. 

§  140.  There  are  of  necessity  many  things  resting  exclu- 
sively in  the  discretion  of  a  court  as  to  pending  causes,  and 
the  proceedings,  which  we  need  not  particularly  notice  in 
detail;*  but  there  are  some  incidental  to  the  general  exercise 
of  jurisdiction  which  we  may  refer  to  as  illustrations  and 
examples  of  the  whole.  We  shall  also  see  that  sometimes,  as 
to  subject-matter,  there  is  a  kind  of  jurisdiction  which  is  but 
incidental  or  subsidiary  to  other  than  law  courts.  This  we 
shall  explain  in  its  proper  order,  first  considering  that  which 
is  incidental  to  the  adjudication  of  causes  coming  in  the  reg- 
ular order  of  things,  before  legal  and  equitable  tribunals. 

§  141.  A  court  may  regulate  the  convenience  and  facility 
of  practice,  I  suppose,  to  any  extent  which  does  not  contra - 
Tene  any  statutory  provision;  and  so  may  establish  binding 
rules,  a  non-compliance  with  which  will  banish  parties  from 
the  courts  or  dismiss  a  pending  action.  And  this  has  been 
carried  so  far  as  to  hold  that  a  court  may  adoj)t  a  rule  com- 

*Andgro.ss  abuse  only  will  justity  as  also  all  orders  made  in  a  cau<e. 
interference  by  a  supreme  court  State  v.  Parker,  7  S.  C.  2o5. 
therein.  l{eynolds«.Zink,27Gratt.  And  incidental  juri.>;diction  is 
29.  But  a  court  cannot  institute  wholly  dependent  on  rightful  gen- 
proceedings,  or  make  motions,  in  a  eral  jurisdiction  of  a  pending  cause, 
cause  sua  sponte.  The.se  must  be  Gay  «.  Eaton,  27  La.  An.  IGG. 
invoked  by  the  interested  parties, 


INCIDENTAL    JURISDICTION.  131 

pelling  a  defenJant  to  make  an  affidavit  of  merits,  or  suffer 
a  default ;  and  that  this  does  not  contravene  the  provision  of 
the  constitution  allowing  a  trial  by  jury.(rt)  Again,  it  has 
been  decided  that  a  court  may  oblige  an  appellant  to  give 
notice  of  the  time  and  place  of  entering  an  ajDpeal,  and  of  the 
names  of  the  sureties  offered. (6) 

§  142.  A  court  has  power  to  protect  itself  by  forbidding  the 
publication  of  proceedings  pending  therein,  but  this  cannot 
be  done  by  injunction,  but  by  means  of  an  order  regularly 
made  in  the  cause.  Said  Judge  Duer,  in  a  certain  case : 
"Sitting  as  judge  in  equity  I  am  satisfied  that  I  liave  no 
power  to  continue  this  injunction.  I  do  not  believe  that  a 
court  of  ecpiityhas  ever  attemi)ted  to  restrain  the  publication 
of  the  proceedings  in  a  pending  action  at  law,  either  upon  the 
grounds  set  forth  in  this  complaint,  or  upon  any  other;  nor 
do  I  believe  that,  had  the  jurisdiction  ever  been  claimed,  the 
<;ourts  of  law  would  have  submitted  to  its  exercise.  It  would 
have  been  regarded  and  resisted  as  a  manifest  usurpation  of 
power.  It  is  the  exclusive  privilege  of  the  court  in  which  the 
action  is  pending  to  determine  whether,  for  any  reason,  the 
publication  of  the  proceedings  ought  to  be  forbidden;  and, 
where  the  prohibition  is  deemed  to  be  iiecessaiy  or  proper, 
it  can  only  be  regularly  made  by  an  order  in  the  cause.  The 
case  is  not  altered  by  the  fact  that  the  action  is  pending  in 
this  court,  which  is  now  a  court  of  equit}'  as  well  as  law. '"(c) 

§  143.  And,  in  the  absence  of  statutory  requirements  on  the 
matter,  all  amendments  of  the  pleadings  of  parties  are  within 
discretion,  and  may  accordingly  be  allowed  or  refused,  as  the 
court  may  deem  most  conducive  to  justice  under  the  circum- 
stances, ((/)  although  a  court  cannot,  of  course,  in  any  way  con- 
trol a  statute.*     And  so  a  record  ma}'  be  amended,  even  in 

(ajViinatta   v.  Anderson,  3   Binn.  McCord,  74  111.  34.     So  that  a  conrt 

(Pa.)  422.  is  absolutely  powerless  to  abrogate 

(/;)Hany  v.  Randolph,  Id.  27S.  any  statutory  provision  by  a  rule. 

(<')Wood  V.  ]\rarvine,  3  Duer,  (N.  Ilayward  ».  Kamsey,  Id.  379.     And 

y.)  67.5.  the   legislature   has   the   power   to 

(r?).Jackson  v.  Warren,  32  111.  337.  require  alt  rules  to  be  approved  by 

*For  the  legislature  can  authori-  the  supreme  court,     liolling  Mills 

lively    regulate    practice.     Yoe    v.  Co.  v.  Robin.son,  34  Mich.  428.    Nor 


132 


INCIDENTAL    JUPJ!- DICTION. 


material  matters,  as  to  the  parties  to  the  suit,  but  not,  in- 
deed, in  a  way  prejudicial  to  third  parties,  for  "there  is  no 
doctrine  resting  on  a  more  stable  ground,  both  of  reason  and 
authority,  than  that  all  material  amendments  of  a  record 
must  be  made  with  a  saving  of  intervening  rights  acquired  by 
third  persons.  In  an  order  allowing  an  amendment,  it  is 
proper  to  express  this  by  way  of  removing  all  doubt.  But, 
whether  expressed  or  not,  the  law  makes  the  reservation. 
For  what  is  the  judgment  of  a  court '?  It  does  not  reside, 
unspoken  and  unwritten,  in  the  breast  of  the  judge.  It  is 
not  to  be  sought  in  the  minutes  or  memoranda  which  the 
judge  makes  upon  his  own  docket,  and  which  the  law  does  not 
require  him  to  make,  but  which  are  merely  kept  by  him  for 
his  own  convenience,  and  to  enable  him  to  see  that  the  clerk 
accurately  makes  up  the  record.  These  minutes,  it  is  true, 
are  a  proper  means  of  amending  a  record;  but,  until  the 
amendment  is  made,  the  public  can  act  on  no  other  means  of 
information  than  the  official  records  of  the  court  as  kept  by 
an  officer  appointed  by  the  law  for  that  purpose.     How  often 


has  a  court  power  thus  to  change 
any  provision  or  maxim  of  common 
law;  as,  for  example,  to  make  a  rule 
that  a  special  appearance  in  a  cause 
shall  have  the  force  of  a  general 
appearance.  Hufl!  v.  Shepard,  58 
Mo.  242. 

And  where  a  statute  provides  for 
the  order  of  docketing  causes,  and 
trying  them  in  their  order,  a  court 
cannot  by  rule  establish  a  different 
order.  Angel  «.  Mfg.  Co.  73  111. 
413. 

A  court  can  enter  judgment  nimc 
fro  tunc.  Fuller  v.  Stephens,  49  la. 
376. 

In  the  absence  of  a  statute,  and 
within  the  limits  of  the  law,  a  court 
is  the  exclusive  judge  of  the  expe- 
diency of  its  own  rules.  Gannon 
V.  Fritz,  79  Pa.  St.  303.  As,  lor  in- 
stance, in  regard  to  the  o:der  of 
business.  State  v.  Sawyer,  5(5  N. 
H.  175.     And  may  excuse,  at  dis- 


cretion, an  infraction  of  its  rules; 
as,  in  setting  aside  a  default  at  the 
term  Avhen  enteied.  Sheldon  v. 
Risedorph,  23  Minn.  518.  And  es- 
pecially when  a  default  is  taken  in 
the  absence  of  service  on  the  de- 
fendant. Wyraan  ».  Hoover,  10  S. 
C.  135.  Or  permit  an  act  to  be  done 
after  a  time  prescribed.  Martina  «. 
Lowenstein,  68  N.  Y.  456. 

It  is  held  in  Wisconsin,  and,  I 
think,  justly,  that  a  supreme  court 
may  appoint  janitors  free  from  the 
control  of  the  legislature,  though 
in  the  state  capitol.  Janitor  Case, 
35  Wis.  410. 

A  court  may  regulate  its  own  sit- 
tings during  a  term.  Labadie  v. 
Dean,  47  Tex.  90. 

One  court  cannot  properly  com- 
municate with  another  except  under 
its  seal.  Stitson  e.  Com'rs,  45  Ind. 
173. 


INCIDENTAL    JURISDICTION.  133 

have  this  and  other  courts  expressed  the  maxim  that  'a 
record  imports  absolute  verity  j '  *  *  *  *  Parties  can- 
not be  held  to  notice  of  what  has  no  legal  existence,  and  we 
should  be  going  quite  too  far  were  we  to  hold  tbem  to  notice 
of  informal  memoranda  on  the  docket  of  the  judge,  by  which 
the  record  might  possibly,  at  some  future  time,  be  amended, 
and  require  them  to  act  as  if  such  amendment  had  been 
already  made.  The  public  is  bound  by  the  record  of  a  court, 
and,  on  the  other  hand,  has  a  right  to  abide  by  it.  What  we 
have  said  in  regard  to  the  judge's  minutes  applies,  with  at 
least  equal  force,  to  the  unsigned  and  undated  memorandum 
uj)on  the  execution  docket. "(c)  The  amendment  of  the 
records  by  the  court,  sua  sponte,  may  be  made  at  any  time 
during  the  judgment  term.(/)  After  that  only  by  motion  of 
a  party,  and  on  notice  given. 

§  144.  The  court  exercises  a  plenarv  power  of  control  over 
its  i^rocess  and  over  the  officers*  who  serve  it,  until  the  rights 
of  third  persons  intervene.  The  Alabama  court  say,  on  this 
matter:  "There  can  be  no  doubt  of  the  jurisdiction  and 
j)ower  of  the  common  law  courts  over  their  process,  and  also 
over  the  officers  who  execute  it.  And,  in  the  due  exercise  of 
this  power,  such  courts  may,  ujDon  motion,  not  only  quash  and 
set  aside  their  judicial  process  and  the  returns  made  by  the 
officer  under  it,  but  may,  also,  at  any  time  before  a  deed  is 
executed  to  the  purchaser,  and  approved  of  and  acknowledged 
and  entered  of  record,  upon  a  proper  presentation  of  facts, 
quash  the  process  and  set  aside  the  sale,  because,  up  to  that 
time,  no  title  has  been  perfected  in  the  purchaser  to  the  proj)- 
erty  so  purchased,  and  when  he  conies  before  the  court  to 

(«)McCormick  v.  Wlu'eler,  36  111.  v.  Slnte,  2«  Ark.  417.      And  gener- 

12(>.  all}'  a  court  has  the  right  to  compel 

(/)Smith  «.   Vaiulcrburg,  46  111.  the  performance  of  mini.sterial  acts 

36.  by    a    summary   rule.     Duncan    v. 

*B()mewhat     strongly    stated,    I  Baker,  13  Bush,  514.     If   a  rule  is 

think.  made   against   a  sheriff,   the  court 

In    Arkansas  a    court   may  sus-  may   modify   it  so   as  to  meet  the 

pend  a  clerk   for   misdemeanor   in  justice  of  the  ca.se.     Gibson  v.  Gib- 

drunkenne.ss,  or  illegal  acts.     This  son,  7  S.  C.  3.J6. 
power  is  couferred  by  statute.     Coit 


134  INCIDENTAL    JIJEISDICTION. 

have  his  deed  acknowledged  and  entered  of  record,  or  when  it 
is  made  to  appear,  upon  the  motion  of  either  the  plaintiff  or 
the  defendant,  that  the  process  of  the  court  has  improvidently 
issued,  or,  through  the  fraud  or  neglect  of  the  officer  or  of  the 
parties,  it  has  been  abused,  to  the  prejudice  of  the  rights  of 
either  the  plaintiff  or  the  defendant  in  execution,  the  court  has 
the  power,  and  it  is  its  duty,  to  withhold  its  assent  to  an 
affirmance  of  such  acts,  and  to  set  them  aside  that  a  new  and 
more  regular  proceeding  may  be  had.  This  power  is  indis- 
pensably necessary  to  enable  the  court  to  execute  its  judg- 
ment ;  and,  so  far  as  the  mere  setting  aside  of  the  process  or 
the  return  on  it  is  concerned,  the  power  exists  as  well  after  as 
at  the  return  term  of  the  process,  because  this  is  a  proceeding 
between  the  parties  to  the  proceeding  and  the  officers  of  the 
court  in  which  the  rights  of  third  persons  are  not  involved. 

"But  after  the  court  has  approved  the  sale,  and  caused  a 
deed  to  be  acknowledged  and    delivered   to  the  purchaser, 
whereby  he  has  had  assured  to  him  a  perfect  legal  title  to  the 
property,  should  the  court,  at  a  subsequent  period,  upon  the 
ground  of  fraud,  accident  or  mistake,  or  for  any  irregularity 
in  the  proceedings  which  must  of  necessity  in  most  instances 
arise  out  of  one  or  other  of  these  causes,  upon  motion  assume 
jurisdiction,  and  the  power  to  hear  and  determine  the  merits 
of  such  motion,  it  would  thereby,  in  effect,  take  jurisdiction 
of  matters  not  projDerly  cognizable  before  it,  even  upon  a  reg- 
ular proceeding  instituted  in  such  court  for  that  purpose,  for 
these  are  all  matters  properly  cognizable  before  a  court  of 
chancery ;  and,  whether  presented  by  bill  or  motion,  does  not 
in  anywise  change  or   affect  the  question  itself.     The  pur- 
chaser, when  he  leaves  the  common  law  court  with  perfect 
legal  title,  sanctioned  and  approved  by  the  court,  is  no  longer 
to  be  considered  before  that  court;  his  rights  are  matured, 
and  he  is  so  far  disconnected  from  the  proceeding  that  he  is 
not  affected  with  notice  of  any  after  order  made  in  regard  to 
his  title,  and  when  brought  before  the  court  again  by  notice 
and  motion,  or  otherwise,  he  stands  there  as  a  party  defend- 
ing his  right  to  hold  an  estate  to  which  his  legal  title  is  per- 
fect ;  and  when  the  validity  of  the  title  itself  is  assailed,  for 


INCIDENTAL    JURISDICTION.  135 

frcaud,  accident  or  mistake  arising  out  of  the  irregularity  ol 
the  acts  or  proceedings  of  the  parties,  he  has  a  right  to  be 
heard  before  a  tribunal  that  can  rightfully  exercise  jurisdiction 
in  such  matters,  with  power  and  j)roces8  to  bring  all  parties 
in  interest  before  it,  to  put  them  upon  their  consciences  to 
answer,  to  cancel  deeds,  to  restore  possession,  and  award 
equitable  compensation. 

"In  view  of  the  general  powers  of  the  common  law  and 
chancery  courts,  we  feel  clear  on  this  point;  and  although 
there  are  several  reported  cases  which  would  seem  to  question 
the  correctness  of  our  conclusions,  yet,  when  carefully  exam- 
ined, they  will  be  found  to  have  been  made  under  statutes 
which  authorize  such  summary  proceedings. "(r/) 

§  145.  A  suit  is  regarded  as  pending  until  the  judgment 
is  not  only  rendered,  but  satisfied.  And  no  court  will  enter- 
tain a  distinct  suit  designed  to  accomplish  nothing  beyond 
what  can  be  effected  by  orders  in  a  cause,  or  a  rule  on  the 
parlies  therein,  (/i)  And  it  is  a  business  of  a  court  to  give 
full  effect  to  its  rules;  as,  where  one  obtains  possession  of 
property  by  a  fraudulent  use  of  a  rule  of  court,  or  wrongfully 
retains  possession,  though  for  a  temporary  purpose,  without 
fraud,  it  is  the  duty  of  the  court  to  dispossess  him  summa- 
rily. (?)  And  so  it  is  that,  as  we  saw  in  the  preceding  section, 
a  court  of  law  will  exercise  an  equitable  jurisdiction  over  the 
execution  of  its  own  judgment  and  j)rocess,  if  it  can  do  as 
complete  justice  as  a  court  of  equity  could  do.(j)  Moreover, 
on  the  explicit  ground  that  "when  jurisdiction  has  once 
attached  it  continues  necessarily,  and  all  the  powers  requisite 
to  give  it  full  and  complete  effect  can  be  exercised  until  the 
end  of  the  law  shall  be  attained,"  it  is  competent  for  a  court, 
even  of  local  and  inferior  jurisdiction,  to  send  final  process 
anywhere  within  the  state,  and  outside  of  its  territorial  limit- 
ation, in  any  case  where  jurisdiction  to  render  judgment  has 

(,7)State  Bank  v.  "Woland,  8  Eng,  (i)Winters  v.  Helm,  3  Nev.  397. 

(Ark.)  301.  (j) Watson  v.  Reissig,  24  111.  284; 

(A)Mann    v.    Blount,    65    N.   C.  Mason  v.  Thomas,  Id.  287. 
101. 


136  INCIDENTAL    JURISDICTION. 

properly  been  acquired; (A)  althongli,  of  course,  the  manner 
of  doing  this  may  be  prescribed  by  statute.  And  when  money 
is  collected  on  execution,  its  disposal  belongs  to  the  court 
issuing  the  execution. (7) 

§  146.  By  the  New  York  code — as  also  in  Wisconsin,  and 
elsewhere — is  established  an  incidental  jurisdiction  in  what 
is  called  supplementary  proceedings — a  kind  of  new  suit,  but 
strictly  subordinate  to  the  original  suit,  answering,  indeed,  to 
a  creditor's  bill  in  equity.  It  consists  in  an  examination  of 
a  judgment  debtor,  in  order  to  discover  his  assets,  and  is, 
therefore,  in  the  nature  of  an  equitable  proceeding,  and  is  a 
substitute  for  a  creditor's  bill.  However,  it  is  an  action  in 
the  original  cause,  and  is  so  regarded  as  a  kind  of  additional 
or  equitable  execution,  penetrating  further  than  an  ordinary 
execution. (w)  Yet  it  is  not  imperative;  but,  at  an}"  time 
before  the  appointment  of  a  receiver,  the  judgment  creditor 
can  abandon  the  supplementary  proceedings,  and  bring  a 
creditor's  bill.(»)* 

Where  there  was  a  parol  agreement  between  parties  that 
the  suit  pending  was  to  be  discontinued,  without  costs,  and,  by 
mistake,  a  judgment  for  costs  was  entered  against  the  plain- 
tiff, notwithstanding  the  agreement,  whereon  an  execution 
was  issued,  and  then  supplementary  proceedings  were  insti- 
tuted, it  was  held  the  plaintiff  could  not  vacate  the  order  for 

(7.)People  ex  rel.  v.  Ban-,  22  111.  a  judscment  of  the  supreme  court, 

243.  on  an  order  of  a  county  judge  i.ssued 

(^)Bevard   v.  Young,    26  La.  An.  in  supplementary  proceedings  there- 

598.  on,  both  courts  have  so  far  a  con- 

(7?«)Sale  V.  Lawson,  4  Sandf.  718;  current  control  of  the  order  as  that 

Gould  V.  Torrance,  19  Ifow.  Pr.  561.  either  can  punish  disobedience  as  a 

Different     creditors     may    have  contempt.     Tremain  v.  Richardson, 

supplementary  proceedings   pend-  68  N.  Y.  617. 

ing  at  the  same  time  in  Wisconsin,  A  demand    must    be    made    for 

and,  when  a  receiver  is  appointed,  property  of  the  debtor  before  sup- 

the  court  determines  the  matter  of  plementary  proceedings  can  be  in- 

priority  among   them.     Kellogg  v.  stituted.     Bank  v.  Wilson,  13  Hun. 

Caller,  47  Wis.  665.  232. 

(«) Bennett  v.  McGuire,  58  Barb.  See  State  «.  Becht,  23  Minn.  411; 

C;i4.  Rand  v.   Hand,  78  N.   C.   12,  as  to 

*Where  an  execution  is  issued  on  supplementary"  proceedings. 


INCIDENTAL    .lURISDICTION.  137 

jliis  examination  on  the  supplementary  proceedings   on  the 
ground  of  the  mistake  in  entering  the  judgment — his  remedy 

!)eing  a  direct  application  to  open  the  judgment. (o)     Indeed, 
no  case,  can  the  merits  of  the  original  action  be  brought 

ito  question  in  such  proceedings (/>)  except  where  there  is  a 

mnt  of  jurisdiction  in  the  original  suit.((/) 
§  147,  The  authority  of  a  state  over  boats  in  its  navigable 

mters  may,  perhaps,  be  regarded  more  as  an  incidental  than 
a  direct  result  of  its  essential  jurisdiction.  And  so,  in  regard 
to  a  statute  of  Missouri  in  regard  to  collisions  of  steamboats 
on  the  Mississippi  and  other  rivers,  a  question  came  up,  in 
a  certain  case,  as  to  the  application  of  the  statute,  when  the 
boats  were  owned  by  non-residents.  The  court  maintained 
jurisdiction,  and  said:  "The  only  question  in  this  case  is, 
whether,  under  our  statute  concerning  boats  and  vessels,  the 
courts  of  this  state  have  jurisdiction  where  the  boat  employed 
in  navigating  the  waters  of  this  state  is  owned,  in  whole  or 
part,  by  citizens  of  other  states,  or  foreign  countries.  It  is 
very  clear  that  if  the  non-residence  of  one  or  more  owners  of 
a  steamboat  divests  the  jurisdiction  of  our  courts  in  such 
proceedings,  the  statute  is  an  entire  failure.  The  purpose  of 
the  law  is  defeated  in  the  very  cases  where  its  provisions  are 
most  needed.  The  main  object  of  the  law  is,  undoubtedl}',  to 
give  redress  against  the  boat  without  requiring  the  party 
aggrieved  to  look  up  the  owners.  Probably  a  large  proportion 
of  the  boats  which  navigate  the  waters  within  this  state,  and 
upon  her  borders,  are,  either  in  whole  or  in  part,  owned  by 
citizens  of  other  states ;  and  to  give  a  construction  to  our 
statute  which  would  oust  the  jurisdiction  of  our  court  upon 
the  discovery  of  the  fact  that  there  was  a  non-resident  owner, 
would,  virtually  and  substantially,  annul  the  law.  But  we 
are  not  apprised  of  any  provision  in  the  federal  constitution, 
or  any  principle  of  inter-state  comity,  which  requires  ^uch  a 
construction  to  be  given  to  the  law.     Citizens  of  other  states, 

{o)Giir(]ner  V.  Lay,  2  Daly,  114.  (7)Griffin  v.  Doiuinguez,  2  Duor, 

(/))0'Neil  V.  Martin,  1 E.  D.  Smith,       657. 
405. 


138  INCIDENTAL    JURISDICTION. 

or  of  foreign  countries,  who  l)ring  or  send  their  property 
-within  the  jurisdiction  of  this  state,  have  surely  no  ground  of 
complaint  if  that  property  is  treated  precisely  as  it  would  be 
if  its  owners  resided  here.  They  cannot  claim  exemptions 
which  our  own  citizens  are  not  allowed.  No  principle  of 
comity  requires  a  discrimination  in  their  favor. "(r)  This 
will  be  further  noticed  in  relation  to  admiralty  jurisdiction  in. 
Part  II.,  infra. 

(r)Yore  v.  Steamboat,  26  Mo.  428. 


INCIDENTAL    JUrU.-iDlCTION    AS    TO    CHURCHES,    ETC.  130 


CHAPTEE  XVIII. 

INCIDENTAL  JURISDICTION  AS  TO  CHURCHES  AND  OTHER  VOLUNTARY 

SOCIETIES. 

§  148.  In  general. 
140.  As  to  lodges. 
loO.  Action  against  secret  organizations,  etc. — boards  of  trade. 

151.  Cliurcli  regulations. 

152.  Forfeiture  of  property  in  church  by  members  seceding. 

153.  Interference  with  church  affairs. 

§  148.  So  far  as  churches,  lodges,  etc.,  are  incorporated,  they 
fall  under  the  same  principles  of  control  that  other  corpora- 
tions do,  and  hence  the  jurisdiction  they  may  invoke  in  their 
behalf,  or  that  may  be  invoked  against  them,  is  merel}'  of  the 
direct  and  ordinary  character;  since  it  is  a  well-settled  rule 
that,  as  to  legal  proceedings  for  or  against  them,  corporations 
are  individual  persons.  But  the  matter  is  essentially  differ- 
ent when  judicial  cognizance  is  taken  of  the  internal  rules  and 
actions  thereunder  of  ecclesiastical  organizations,  and  similar 
institutions.  In  England,  the  ecclesiastical  courts  have  been 
regarded  as  part  of  the  national  judicial  system,  and  were 
therefore  endowed  with  a  large  measure  of  judicial  authority. 
But  they  hold  no  such  rank  here ;  and,  moreover,  they  are,  in 
a  degree,  under  the  supervisoiy  authority  of  the  courts,  so  far 
as  necessary  to  prevent  flagrant  abuses  of  discii^line  over  their 
members.  They  may,  uncontrolled,  establish  such  rules  and 
regulations  as  they  please,  and  therein  they  will  not  be  med- 
dled with,  if  they  keep  within  the  compass  of  their  own  rules, 
and  these  do  not  contravene,  in  any  way,  individual  rights, 
as  defined  by  the  laws  of  the  land. 

§  149.  For  instance,  referring  first  to  lodges,  they  cannot 
be  allowed  to  impair  the  rights  of  property  as  against  the  will 


1  10  INcMnKNTAli    .TUIUSDICTION    AS    TO    CHURCHES,    ETC. 

of  tlu'  owiuT.  Said  llroaui  J.,  in  an  Odd-Fellow  case,  in 
New  York:  "The  by-laws  and  regulations  of  these  voluntary 
associations  may  all  be  very  well  in  their  place  and  sphere, 
and  may  command  generally  the  obedience  and  submission  of 
those  upon  whom  they  are  designed  to  act;  they  cannot,  how- 
ever, have  the  force  of  law,  nor  impair  or  affect  the  rights  of 
property  against  the  will  of  its  real  owners.  So  long  as  the 
meml)ers  of  these  bodies  yield  their  assent,  or  concurrence,  it 
is  all  very  well ;  the  law  interposes  no  obstacle,  or  objection. 
But  when  orders  and  decrees  of  the  character  of  those  referred 
to  are  resisted,  [as  in  confiscation  by  a  grand  lodge  of  subor- 
dinate lodges'  property,]  and  the  owners  of  property  refuse  to 
be  deprived  of  it,  then  it  will  be  found  that  property  has 
rights,  and  the  courts  of  justice  have  duties  of  which  the 
l)laintiff  in  this  action  seems  to  have  an  indifferent  conception. 
The  courts  of  justice  cannot  be  called  upon  to  aid  in  enforcing 
the  decrees  of  these  self-created  judicatories.  The  confisca- 
tion and  forfeiture  of  property  is  an  act  of  sovereign  power, 
and  the  aid  of  this  or  any  other  court  will  not  be  rendered  to 
enforce  such  proceedings,  or  to  recognize  legal  or  supj)osed 
legal  rights  founded  upon  them. "(a)  And,  in  the  same  case, 
SeldcH,  J.,  said:  "Were  it  distinctly  averred  that  the  defend- 
ants had  subscribed  the  constitution  of  the  grand,  as  well  as 
of  the  subordinate  lodge,  I  should  still  be  of  the  opinion  that 
public  policy  would  not  admit  of  parties  binding  "themselves 
by  such  engagements.  The  effect  of  some  of  the  provisions 
of  these  constitutions  is  to  create  a  tribunal  having  the  power 
to  adjudicate  upon  the  rights  of  property  of  all  the  members 
of  the  subordinate  lodges,  and  to  transfer  that  property  to 
others;  the  members  of  this  tribunal  being  liable  to  constant 
fluctuations,  and  not  subject,  in  any  case,  to  the  selection  or 
control  of  the  parties  upon  whose  rights  they  sit  in  judg- 
ment. To  create  a  judicial  tribunal  is  one  of  the  functions 
of  the  sovereign  power;  and  although  the  parties  may  always 
make  such  tribunals  for  themselves,  in  any  specific  case,  by 
a  submission  to  arbitration,  yet  the  power  is  guarded  by  tne 
most  cautious  rules."    A  contract  that  the  parties  will  submit 

(«)  Austin  fl.  LLMrluo-,  16  N.  Y.  124. 


INCIDENTAL    JURISDICTION    AS    TO    CHURCHES,  STC.  141 

confers  no  power  upon  the  arbitrator;  and,  even  where  there 
is  an  actual  submission,  it  may  be  revoked  at  any  time.  The 
law  allows  the  party  up  to  the  last  moment  to  ascertain 
whether  there  is  not  some  covert  bias  or  prejudice  on  the  part 
of  the  arbitrator  chosen.  It  would  hardly  accord  with  this 
scrupulous  care  to  secure  fairness  in  such  cases  that  parties 
should  be  held  legally  bound  by  the  sort  of  engagement  that 
exists  here,  by  which  the  most  extensive  judicial  powers  are 
conferred  upon  bodies  of  men  whose  individual  members  are 
subject  to  continual  fluctuation." 

And,  quoting  from  Lord  Eldon,  in  a  case  where  a  bill  was 
brought  to  obtain  the  possession  of  books,  papers,  decorations, 
dresses,  etc.,  of  a  Freemason  lodge,  {Lloyd  v.  Lorlng,  6  Yes. 
733,)  it  was  held  that  "a  bill  might  be  filed  for  a  chattel,  the 
plaintiffs  stating  themselves  to  be  jointly  interested  in  it  with 
several  other  persons,  but  it  would  be  a  very  dangerous  thing 
to  take  notice  of  them  as  a  society  having  anything  of  a  consti- 
tution in  it.  In  this  bill  there  is  a  great  affectation  of  a  corpo- 
rate character.  They  speak  of  their  laws  and  constitution,  and 
the  original  charter  by  wiiich  they  were  constituted.  li\  AlUii 
V.  Duke  of  QueciisJnirtf,  Lord  Thurlow  said  he  would  convince 
the  parties  that  they  had  no  laws  and  constitutions.  *  *  * 
That  this  court  will  hold  jurisdiction  to  have  a  chattel  deliv- 
ered up  I  have  no  doubt,  but  I  am  alarmed  at  the  notion  that 
these  voluntary  societies  are  to  be  permitted  to  state  all  their 
laws,  forms  and  constitutions  upon  the  record,  and  then  to  tell 
the  court  that  they  are  individuals,  etc.  The  bill  states  that 
they  subsist  under  a  charter  granted  bj^  persons  who  are  now 
dead,  and,  therefore,  if  this  charter  cannot  be  produced  the 
society  is  gone.  Upon  principles  of  policy  the  courts  of  this 
country  do  not  sit  to  determine  upon  ciiarters  granted  by  per- 
sons who  have  not  the  prerogative  to  grant  charters." 

§  150.  So  we  see  the  courts  will  protect  and  shield  individ- 
ual rights  of  property,  and  refuse,  accordingly,  to  aid  such 
organizations  to  divest  them  under  the  force  of  their  internal 
rules,  and  in  accordance  with  the  demands  of  their  tribunals. 
But  it  seems,  on  the  other  hand,  that  a  court  will  entertain 
an  action  against  a  secret  organization  for  benefits  guaran- 


14:2  IXCIPKNTAL    JURISDICTION    AS    TO    CHURCHES,   ETC. 

tied  bv  its  rules,  and  will  entertain  in  such  an  action  the  de- 
fence "that  the  member  through  whom  the  benefit  is  claimed 
was  in  his  life-time  expelled,  and,  under  this,  the  replication 
Ihat  the  expulsion  was  not  according  to  the  constitution  and 
])V-laws  of  the  society.(/0  As  to  boards  of  trade,  I  think  the 
Wisconsin  rule  that  the  by-laws  are  subject  to  judicial  con- 
trol, even  as  to  conditions  of  membership,  (State  ex  rel.  v. 
ClKiinbcr  of  Commerce,  20  Wis.  63  ;  Diekensen  v.  Chamber  of 
Commerce,  29  Wis.  45;  State  ex  rel.  v.  Chamber  of  Commerce, 
47  Wis.  079,)  is  better  than  the  Illinois  rule,  which  strongly 
leans  to  the  opposite,  (People  ex  rel.  v.  Board  of  Trade,  80 
111.  184;  Fishery.  Board  of  Trade,  80  111.  84;  Baxter  v.  Same, 
03  111.  14(5;  Stiirges  v.  Same,  86  111.  441,)  because  membership 
in  a  board  of  trade  may  involve  essential  property  rights  or 
2H"ivileges  of  trade. 

^  lol.  Church  regulations  are  held  in  a  similar  control. 
It  is  well  settled  that  to  give  the  courts  jurisdiction  there  must 
be  an  invasion  of  property  or  personal  rights,  for  they  will 
never  interfere  in  this  country  merely  where  there  is  a  relig- 
ious controversy,  or  in  disciplinary  matters,  or  in  elections,  or 
mere  choice  of  pastors,  or  anything  of  the  kind.(c)  Thus  far 
it  is  a  purely  ecclesiastical  act,  but  where  it  has  effect  upon 
property  the  courts  may  interfere  ^^^oaci  hoc,(c)  and  no  further. 
Yet  the  New  York  court,  in  the  elaborate  case  just  referred  to, 
could  not  forbear  admonition  in  so  eloquent  and  forcible  lan- 
guage that  I  am  tempted  to  transcribe  it,  in  view  of  the 
importance  of  the  subject — for  when  laymen  officially  preach 
to  the  ministry,  from  a  judicial  pulpit,  all  the  world  should 
listen.  Besides,  the  extract  tends  to  illustrate  the  boundary 
of  judicial  interference :  "This  cause  is  of  importance,  not 
only  in  a  legal  point  of  view,  but  also  of  vast  importance  to 
the  church  and  society  interested  in  this  litigation.  Perhaps 
the  clerical  gentlemen  who  have  been  the  principal  actors  in 
this  case  did  not  duly  weigh  the  consequences,  or  there  would 
have  been  more  forbearance.     Here  were  five  ministers  of 

(ft)Osfeola  Tribe  of  Red  ]Men  «.  Barb.  fiS.  where  the  subject  is  elab- 
Kost.  Adm'r,  15  Md.  295.  orately    examined,    and    the    ca.x  , 

(cjSee  Kobertsou    c.    Bullion,    9      selected. 


INCIDENTAL    JUKISDICTION    AS    TO    CHURCHES,    ETC.  143 

that  j)eaceful  and  holy  religion,  to  the  truth  and  value  of 
which  all  well  informed  and  reflecting  minds  must  assent, 
having,  as  the}'  no  doubt  honestly  believed,  causes  of  com- 
plaint among  them;  but  which,  with  all  due  allowance,  I  must 
think  could  and  should  have  been  adjusted  without  delay  and 
without  difficulty.  But,  unfortunately,  a  dilTerent  course  was 
adopted,  and  the  consequences  have  been  calamitous  indeed. 
The  hallowed  and  mystic  union  of  pastor  and  church,  ce- 
mented and  strengthened  by  the  friendship),  the  communion 
and  the  vicissitudes  of  thirty  years — a  period  which  assigns  a 
generation  to  the  grave — has  been  dissolved;  the  ties  and 
associations  of  Christian  brethren  and  sisters  have  been  sev- 
ered and  broken,  and  one  portion  of  the  church  has  expelled, 
or  attempted  to  expel,  the  other  from  the  enjoyments  and  con- 
solations of  the  Gospel  ordinances,  striking  off  over  one  hun- 
dred and  fifty  at  once,  of  whom  more  than  two-thirds  were 
females ;  and,  finally,  one  of  the  most  enlightened,  benevolent 
find  prosperous  religious  societies  in  the  land  has  been  rent 
by  the  elements  of  strife  and  plunged  into  sharp  and  expen- 
sive litigation  for  years.  No  man  should  judge  another  in  mat- 
ters of  conscience  and  duty.  But  the  retrospect  in  this  case 
is  painful  in  every  aspect,  and  must  produce  a  wish  for  peace 
and  reconciliation  in  every  benevolent  heart." 

The  order  was:  "There  must  be  a  decree  restraining  the 
defendants  from  using  the  temporalities  of  the  corporation 
for  the  support  of  Dr.  Bullion's  ministry,  so  long  as  he  is 
under  sentence  of  deprivation." 

And  so,  in  regard  to  matters  of  mere  discipline,  the 
supreme  court  of  Pennsylvania  remark:  "If,  therefore,  the 
relator  is  injured  by  the  decree  of  the  consistory,  his  remedy 
is  by  aj^peal  to  a  higher  ecclesiastical  court;  which,  no  doubt, 
(and  it  is  indecorous  to  suppose  otherwise,)  will  afford  him 
redress  by  reversing  whatever  may  have  been  done  by  the 
inferior  court  inconsistent  with  the  canons  of  the  church. 
That  the  power  of  the  classis  and  synod  is  advisory  only, 
matters  not,  as  we  cannot  suppose  their  decision  will  be  dis- 
regarded, and  if  it  should  be,  it  will  be  time  enough  to  seek 
redress  from  the  civil  authorities.     The  decisions  of  ecclesi- 


1-U  INTIPKNTAL    JURISDICTION    AS    TO    CHURCHES,    ETC. 

iistiral  oourts.  like  every  other  judicial  tribunal,  are  final,  as 
tlifv  are  the  best  judges  of  what  constitutes  an  offence  against 
the  word  of  God  and  the  discipline  of  the  church.  Any  other 
than  those  courts  must  be  incompetent  judges  of  matters  of 
faith,  ihsripline,  and  doctrine;  and  civil  courts,  if  they  should 
be  so  unwise  as  to  attempt  to  supervise  their  judgments  on 
matters  which  come  within  their  jurisdiction,  would  only 
involve  themselves  in  a  sea  of  uncertainty  and  doubt,  which 
would  do  anything  but  improve  either  religion  or  good  morals. 
Vntil  a  final  adjudication  by  the  church  judicatories  we  think 
tlie  relator  is  without  remedy  by  mandamus." (d) 

In  Kentucky,  the  court  soothed  certain  excommunicated 
members,  trying  to  enforce  their  right  to  vote  at  church  elec- 
tions even  after  they  had  been  excluded,  by  the  following 
pathetic  exhortation:  "The  necessary  consequences  of  the 
view  we  have  taken  of  the  proprietary  or  usufructuary  rights 
of  the  parties  is,  that  there  can  be  no  reversal  of  the  decree 
on  the  errors  assigned  by  the  appellants.  Having  once  asso- 
ciated themselves  with  many  others  as  an  organized  band  of 
professing  Christians,  they  thereby  voluntarily  subjected 
themselves  to  the  disciplinary  and  even  expulsive  power  of 
that  body.  The  voice  of  the  majority  has  prevailed  against 
them.  They  have,  by  that  fiat,  ceased  to  be  members  of  that 
association,  and  with  the  loss  of  their  membership  they  have 
lost  all  the  privileges  and  legal  rights  to  which,  as  members, 
they  were  ever  entitled.  Their  only  remedy  now  is,  therefore, 
in  their  own  bosoms,  in  a  consciousness  of  their  own  moral 
rectitude,  and  in  the  consolations  of  that  religious  faith  and 
those  Christian  graces  which,  under  all  temporal  trials,  will 
ever  sustain  the  faithful  Christian,  and  adorn  the  pathwny  of 
his  earthly  pilgrimage.  Their  expulsion  ought  not  to  brand 
them  with  'immorality.'  In  this  record  there  is  no  proof  of 
immoral  conduct,  in  either  the  popular,  the  ethical,  or  the 
Biblical  sense.  They  were  expelled  for  alleged  non-conform- 
ity and  contumacy,  adjudged  against  them  without  a  formal 
trial  or  hearing,  by  a  dominant  majority,  as  fallible,  perhaps, 
as  themselves.  Self -doomed  to  the  uncontrolled  will  of  a 
(d)German  Kefornied  Cliurch  v.  Seibert,  3  Barr.  291. 


INCIDENTAL    JURISDICTION    AS    TO    CHURCHES,    ETC.  145 

majority  of  a  church  selected  by  themselves,  they  can  obtain 
no  redress  in  tliis  forum.  If  their  sentence  be  unjust,  the 
only  appeal  is  to  the  omniscient  Judge  of  all.  "(f) 

Nevertheless,  ecclesiastical  organizations  will  be  held  to 
the  limits  of  their  own  rules,  strictly ;  and  the  courts  will 
look  into  their  proceedings  rigidly  to  see  whether  these  are 
justified  by  the  standing  and  fixed  regulations  or  not,  espe- 
cially where  property  is  involved.  And  the  principle  of  pos- 
itive interference  is  thus  laid  down  by  the  Kentucky  court : 
"While  we  recognize  the  principle  as  firmly  and  correctly 
established  that  civil  courts  cannot,  and  ought  not  to,  rejudge 
the  judgments  of  sjMritual  tribunals  as  to  matters  within  their 
jurisdiction,  whether  justly  or  unjustly  decided,  we  cannot 
accept  as  correct  the  principle  contended  for  in  the  argument 
for  the  apj)ellees  that  whether  the  synod  had  jurisdiction  and 
j)owerover  the  subject  on  which  it  acted  under  the  presbyte- 
rial  system  is  a  question  purely  ecclesiastical,  to  be  settled  by 
the  synod  itself  and  the  general  assembly.  Such  a  construc- 
tion of  the  powers  of  church  tribunals  would,  in  our  oj)inion, 
subject  all  individual  and  property  rights  confided  or  dedicated 
to  tlie  use  of  religious  organizations  to  the  arbitrary  will  of 
those  who  ma}^  constitute  their  judicatories  and  representative 
bodies,  without  regard  to  any  of  the  regulations  or  constitu- 
tional restraints  by  which,  according  to  the  principles  and 
objects  of  such  organizations,  it  was  intended  that  said  indi- 
vidual and  property  rights  should  be  protected.  Especially  is 
this  80  with  reference  to  the  powers  of  the  higher  courts  of  the 
Presbyterian  church.  Those  powers  are  not  only  defined, 
but  limited  by  the  constitution.  But  if  it  be  true,  as  insisted 
for  the  appellees,  that  the  inferior  courts  and  people  of  the 
church  are  bound  to  accept  as  final  and  conclusive  the  assem- 
bly's own  construction  of  its  powers,  and  submit  to  its  edicts 
as  obligatory,  without  inquiring  whether  they  transcend  the 
barriers  of  the  constitution  or  not,  the  will  of  the  assembly  and 
not  the  constitution  becomes  the  fundamental  law  of  the 
church.  But  the  constitution  having  been  adopted  as  the 
supreme  law  of  the  church  must  be  supreme  alike  over  the 

(tf)Shannou  v.  Frost,  3  B.  Mou.  261. 
V.l— 10 


Ml'.         INCIDENTAL    JURISDICTION    AS    TO    CHURCHES,    ETC. 

MsscmMv  aiul  tlic  people.  If  it  is  not,  and  only  binding  on 
tlio  latter,  the  supreme  judicatory  is  at  once  a  government  of 
despotic  and  unlimited  powers.  But  we  hold  that  the  assem- 
My.  like  other  courts,  is  limited  in  its  authority  by  the  law 
under  whieh  it  acts,  and  when  rights  of  property,  which  are 
secured  to  congregations  and  individuals  by  the  organic  laws  of 
the  church,  are  violated  by  unconstitutional  acts  of  the  higher 
courts,  the  parties  thus  aggrieved  are  entitled  to  relief  in  the 
civil  courts,  as  in  ordinary  cases  of  injury  resulting  from  the 
violation  of  a  contract,  or  the  fundamental  law  of  a  voluntary 
association. 

"If  those  having  control  of  church  property  and  privileges, 
in  a  Catholic  or  Episcopal  organization  in  this  country, 
should  attempt  to  transfer  them  to  the  use  of  another  sect  or 
denomination,  in  violation  of  the  fundamental  principles  of 
such  organization,  and  to  the  destruction  of  the  very  objects 
for  which  their  authority  was  conferred;  or  even  if  a  majority 
of  the  members  of  a  Baptist  or  other  congregational  church 
should  determine  to  sell  and  appropriate  to  individual  use  their 
church  edifice,  erected,  by  means  of  individual  donations  or 
the  contributions  of  its  members,  as  a  house  of  worship,  can 
it  be  said  that  a  civil  court  may  not  interpose  to  give  relief  or 
protection  against  acts  so  flagrantly  void  for  want  of  jurisdic- 
tion or  authority  for  their  commission  ?"(/) 

§  152.  It  is  held,  in  Pennsylvania,  that  those  who  hold 
property  as  a  constituent  part  of  the  church  forfeit  the  prop- 
erty, if  they  secede,  to  those  who  retain  the  old  status. (>/) 
And  even  if  the  seceders  constitute  the  majority  they  cannot 
carry  the  property  with  them.(//,)  And,  if  there  is  a  state  of 
anarchy  prevailing,  the  court  will  regard  the  order  formerly 
existing  as  still  established,  in  determining  the  question  as  to 
who  retains  the  real  and  original  organization,  and  are,  there- 
fore, entitled  to  the  property,  (/i) 

§  153.  In  the  celebrated  Chicago  case  of  the  Eev.  Mr.  Che- 
ney a  divided  court  declared  that  ecclesiastical  tribunals  are 

(/jWatfion  V.  Avery,  2  Bush,  348.  (//)  Winebreuiier  «.  Colder,  43  Pa. 

(^)McAuley's  Appeal,  77  Pa.  St.       St.  244. 
413. 


INCIPENTAL    JURISDICTION    AS    TO    CHURCHES,   ETC.  147 

nbsolute  within  their  sphere,  and  whether  they  conform  or 
not  to  their  own  constitution,  and  whether  the  result  is  or  is 
not  to  exjiel  a  minister  from  his  ofitice  and  salary,  lawfully  or 
unlawfully,  according  to  the  canons  of  the  church,  civil  courts 
cannot  interfere,  (i)  This  is  not  the  principle  running  through 
tlie  cases,  I  think.  Wherever  rights  of  property  or  financial 
interests  are  essentially  involved  the  secular  courts  assuredly 
have  jurisdiction.  The  court  elegantly  say,  however,  in  re- 
gard to  the  relation  between  the  church  and  state :  "Civil 
courts  have  duties  and  responsibilities  devolved  upon  them, 
and  a  well-defined  jurisdiction  to  maintain.  The  church  has 
more  solemn  duties,  more  weighty  responsibilities,  and  an 
authority  granted  by  the  infinite  Author  of  all  things.  We 
shall  not  enter  in  and  'light  up  her  temple  from  unhallowed 
tire.'  The  ministers  selected  to  sit  in  judgment  on  the  acts 
of  a  brother  ought  to  be  impartial  and  competent,  prompted, 
as  they  doubtless  are,  by  the  teachings  of  Divine  Revelation, 
and  the  kindly  influences  of  Christian  charity,  which  'suf- 
fereth  long  and  is  kind,  beareth  all  things,  believeth  all  things, 
hopeth  all  things,  endureth  all  things.'  "  xind  Judge  Robert- 
son, as  quoted  in  this  ojiinion,  sums  the  whole  up  comprehen- 
sively thus:  "Christianity,  though  an  essential  element  of 
conservatism,  and  a  great  moral  power  in  the  state,  should 
only  work  by  love,  and  inscribe  the  laws  of  liberty  and  light 
on  the  heart,  and  the  civil  government  has  no  just  or  lawful 
power  over  the  conscience,  or  faith,  or  form  of  worship,  or 
church  creeds,  or  discipline,  so  long  as  their  fruits  neither 
unhinge  civil  supremacy,  demoralize  society,  or  disturb  its 
peace  or  security." 

(t) Chase  v.  Cheney,  58  111.  527. 


lis  EXCLUSIVE  AND   CONCURRENT   JURISDICTIOH. 


CHAPTEK  XIX, 

EXCLUSIVE    AND   CONCURRENT   JURISDICTION. 

f  154.  In  general, 
l.'i.').  Between  law  and  equity  courts. 
ITii;.  General  principle. 

157.  Same  rules  apply  as  to  concurrent  that  apply  to  separate  juris- 

dictions. 

158.  Application  of  the  rule. 

159.  Conflict  of  jurisdiction — priority. 

160.  Rule  of  priority — limitations. 

§  154.  It  is  competent  to  the  legislature  to  assign  the 
adjudication  of  a  particular  class  of  subjects  to  a  single  court 
exclusively;  or,  otherwise,  to  allow  several  courts  to  exercise 
a  special  jurisdiction  or  the  same  branch  of  a  general  juris- 
diction; and  this  may  extend  to  justices  of  the  peace,  and 
district  courts.(a)  However,  unless  a  concurrence  is  directly 
or  indirectly  provided  for,  it  does  not  exist ;  as  it  does  not 
come  by  implication  merely.  And  so  when  a  statute  upon  a 
general  subject  specifies  or  creates  a  tribunal  to  determine 
the  questions  thereon  arising,  the  jurisdiction  so  conferred  is 
exclusive,  in  the  absence  of  anything  to  express  the  con- 
trary, (6)  in  the  statute  itself,  or  elsewhere;  although,  if  a 
statute  gives  a  particular  jurisdiction  to  a  court,  while  another 
possesses  such  jurisdiction  already,  this  does  not  oust  the 
former,  but  the  two  are  concurrent,  when  the  statute  does 
not  expressly  take  away  the  pre-existent  authority. 

§  155.  The  most  common,  though  not  the  only,  concur- 
rence is  between  law  and  equity  courts;  as,  for  example,  in 
matters  of  fraud.  And  they  may  co-operate  on  the  same 
subject,  at  the  same  time.  But  usually  when  they  do  this 
the  equity  proceedings  are  subsidiary  to  the  legal,  as  in  a 

(a)Clepper  t>.  Stale,  4Tex.  245.  (^-jMacklat  v.  Davenport,   17  la. 

387. 


EXCLUSIVE   AND   CONCUERENT   JURISDICTION.  149 

discovery.  However,  it  has  been  held  in  Maryland  that 
there  may  be,  at  the  same  time,  proceedings  in  equity  to 
enforce  a  trust  under  a  deed,  and  in  a  law  court  to  set  the 
deed  aside,  (c) 

§  156.  The  leading  general  principle  as  to  concurrent  juris- 
diction is  that  whichever  court  of  those  having  such  juris- 
diction first  acquires  possession  of  a  cause  will  retain  it 
throughout.*  It  has  been  observed  that  "great  caution  should 
be  exercised  lest  the  powers  of  these  co-ordinate  courts 
should  be  brought  into  conflict,  as  it  is  apparent  the  evils 
of  such  collision  would  be  of  serious  magnitude;  and  the 
safer,  if  not  the  only  course  is  that  each  court  shall  never  suf- 
fer itself  to  indulge  in  a  cause,  or  in  regard  to  a  subject-mat- 
ter, over  which  another  has  exercised  its  jurisdiction,  "((i) 
And  not  only  so,  but  a  court  has  discretion  to  refuse  juris- 
diction of  a  concurrent  matter,  even  in  the  first  instance, 
especially,  I  suppose,  a  court  of  equity.  Jeivett  v.  Bowuian, 
29  N.  J.  Eq.  176.  "This  rule  would  seem  to  be  vital  to  the 
harmonious  movements  of  courts  w4iose  powers  may  be  ex- 
erted within  the  same  spheres,  and  over  the  same  subjects 
and  persons. "(fi)  And  so,  where  a  suit  involving  conflicting 
liens  and  mortgages  has  been  instituted  in  a  court,  and  all 
the  parties  in  interest  are  brought  in,  and  some  of  the  par- 
ties then  institute  suit  in  another  court,  this  will  not  prevent 
the  former  court  from  determining  the  whole  matter  without 
regard  to  changes  in  the  title  or  possession  of  the  property, 

(c)American  Exchange  Bank  v.  a  receiver,  it  is  lield  in  Iowa  not  to 

Inloes,  7  Md.  387.  be  necessary  to  the  jurisdiction  of  a 

The  principle  is  a  general  one  that  court  of  law,  in  an  action  for  dam- 
concurrent  remedies  applying  to  ages  against  the  corporation  for 
the  same  subject  matter,  but  for  whom  the  receiver  is  appointed, 
diU'ereut  i)urposes,  may  exist  at  law  that  the  consent  of  the  appointing 
and  in  equity.  State  «.  Bridge  Co.  court  should  be  obtained  to  tlie 
2  Del.  Ch.  60.  institution  of  the  action.     Allen  o. 

*And  this  applies  as  between  law  Railroad,  42  la.  683.     But  the  rule 

and   equity  courts.     Hardeman   v.  elsewhere     is    directly    the    other 

Battersby,  53  Ga.  36.     And  it  goes  way.     Gest  v.  R.  R.  30  La.  An.  28. 

through  to  include  the  execution  of  ((/)Winn  v.  Albert,  2  Md.  Chan, 

the  judgment  rendered.     Hawes  v.  Dec.  54. 

Orr,  10  Basil,  432.  (e)Brooks    v.    Delaplaine,   1   Md. 

Where  an  equity  court  apiX)iuts  CIuui.  Dec.  354. 


i:)0  EXCLUSIVE   AND   CONCUKRENT   JURISDICTION. 

^J^ttrLtluU  V.  Ihru'uj,  30  La.  An.  61S;)  since  a  court  which 
liiis  obtained  rightful  jurisdiction  will  retain  it  for  all  pur- 
poses within  the  general  scope  of  the  equities  to  be  enforced. 
obcr  V.  GaUaher,  93  U.  S.  199.  And  state  courts  and  United 
States  courts  are  to  forbear,  in  like  manner,  from  interfering 
with  each  other.  City  of  Opelika  v.  Daniels,  59  Ala.  211. 
And  neither  can  enjoin  the  process  of  the  other.  Chapin  v. 
James,  11  R.  I.  87.  And  the  court  must  make  a  conclusive 
determination  of  the  whole  case,  as  the  two  cannot  take  it  up 
piecemeal  in  any  event,  although  the  two  may  have  jurisdic- 
tion in  the  same  class  of  cases. (/)  However,  a  court  of  equity 
may  sometimes  enjoin  proceedings  at  law,  but  it  has  been  held 
that,  where  the  two  courts  have  concurrent  jurisdiction,  the 
equitable  court  will  not  exert  this  power  unless  there  are 
peculiar  equitable  grounds  for  its  exercise. (//) 

Jurisdiction  in  rem  may  co-exist,  and  be  exercised  at  the 
same  time,  by  several  courts,  where  an  actual  seizure  is  not 
necessary, (/t)  But  then  the  court  whose  mesne  or  final  pro- 
cess has  effected  the  first  seizure  will  have  exclusive  power 
of  disposal,  and  of  the  distribution  of  the  fund  arising  from 
it,  among  the  several  courts  whose  adjudication  is  completed 
in  regard  to  the  matter,  (/t) 

§  157.  Where  the  same  court  has  law  and  equity  jurisdic- 
tion, the  rule  is  the  same,  as  to  the  law  side  and  equity  side, 
that  prevails  as  to  separate  courts,  (i)  And  so,  I  suppose,  even 
where  a  code  abolishes  the  distinction  between  law  and  chan- 
cery proceedings,  but  leaves  the  principles  distinct.  But  the 
rule  disappears,  of  course,  where  the  principles  are  merged, 
or  blended,  as  in  Texas;  where  an  equitable  defence  may  be 
interposed  to  a  legal  action,  or  vice  versa.(j) 

§  158.  The  principle  applies  to  a  case  where  a  petition  has 
been  filed  before  a  board  of  county  commissioners  for  the 
incorporation  of  a  town,  whereas  the  city  has  a  right  by  its 
charter  to  extend  its  boundaries  over  the  territory  included  in 

(/  )Hcnry c.  Tupper,  2  Wms.  (Vt.)  (/i)Averi]l  v.  Steamboat,  2  Cal.309. 

.579  ;  Hickman  v.  Fainter,  11  W.  Va.  (/)Mordecai  v.  Stewart,  37  Ga.  364. 

'■^^^-  .  (j)Neill    V.    Keese,    5    Tex.    23; 

(i^jBank  V.  K  K.  Co.  28  Yt.  477.  Smith  .;.  Doak,  3  Tex.  215. 


EXCLUSIVE    AND    CONCURRENT    JURISDICTION.  151 

the  petition. (/i)  Also,  where  one  after  commencing  a  suit  in 
one  state  brings  an  action  on  the  same  subject-matter  in 
another  state,  then  takes  testimony  in  the  first  and  breaks 
off  to  take  testimony  in  the  latter.  Although  the  domestic 
tribunal  cannot  direct  the  discontinuance  of  the  latter  suit,  it 
can  23ut  the  plaintiff  to  his  election,  and,  if  he  will  not  stipu- 
late to  discontinue  the  foreign  suit,  stay  its  proceedings 
thei'ein  until  the  end  of  the  foreign  suit,  with  leave  thereafter 
to  either  party  to  apply  for  such  further  order  as  may  be 
just.(/) 

§  159.  Where  there  was  a  conflict  in  two  courts  of  the  same 
state,  the  question  arose  as  to  which  ought  to  retain  the  cause. 
The  matter  was  j^laced  first  on  the  ground  of  competency, 
and  then  on  the  ground  of  the  rule  of  priority,  and  the 
supreme  court — one  of  the  conflicting  tribunals — said:  "The 
two  courts  thus  pursuing  opposite  courses  of  decision,  it  is 
manifestly  desirable  that  the  litigation  in  one  should  be  sus- 
pended, and  the  whole  controversy''  carried  to  its  conclusion 
in  the  other.  It  is  more  than  desirable.  It  is  indispensable 
to  a  reasonable,  orderly  and  decorous  administration  of  jus- 
tice. How  sh:ill  this  be  accomplished?  How  shall  it  be 
decided  in  which  court  it  shall  be  continued  ?  And,  when  that 
is  decided,  how  shall  the  decision  be  enforced?  Assuming 
that  the  two  courts  have  jurisdiction  to  the  same  extent,  and 
can  administer  justice  with  equal  facility  and  benefit,  the  rule 
that  the  court  first  having  cognizance  of  the  subject  shall 
retain  it,  and  draw  the  litigation  wholly  to  itself,  seems  to  be 
palpably  applical>le.  It  is  perfectly  free  from  odium,  is  con- 
sistent with  the  fullest  comity  and  the  most  delicate  respect 
for  the  other  tribunal.  If  there  be  no  reason  in  the  constitu- 
tion of  the  courts  why  one  is  more  comjjetent,  under  all  cir- 
cumstances existing  or  likely  to  arise,  to  assume  the  whole  of 
this  controversy  and  conduct  it  to  an  issue  than  the  other, 
priority  in  acquiring  possession  of  the  case  may  with  j)ro- 
priety  be  allowed  to  determine  in  which  it  shall  proceed.  On 
the  subject  of  jurisdictional  power  there  can  surely  be  no 
objection  to  this  court  succeeding  as  it  does  to  all  the  powers 
(A;)Taylor  v.  City,  47  Ind.  280.  {ijHammond  v.  Baker,  3  Duer,704. 


152  EXCLUSIVE    AND    CONCURRENT    JURISDICTION. 

of  the  court  of  king's  bench ;  and  having,  on  every  subject 
within  the  jurisdiction  of  a  state  court,  the  fullest  common 
law  jurisdiction,  it  has  also  the  powers  of  the  state  court  of 
chancery  in  the  administration  of  equity,  and  territorially  its 
jurisdiction,  for  every  purpose,  is  co-extensive  with  the  state. 
The  jurisdiction  of  the  common  pleas,  on  the  contrary,  for 
many  purposes,  is  limited  to  the  county,  and  although  it  may 
now  have  jurisdiction  over  all  the  parties  to  this  litigation, 
circumstances  may  not  improbably  arise  in  which  the  addition 
of  a  party  residing  or  tarrying  without  the  county,  or  any  one 
of  numerous  causes,  may  make  the  more  comprehensive  juris- 
diction of  this  court  desirable  and  necessary  to  the  complete 
determination  of  the  controversy.  "(?«)* 

§  160.  The  rule  of  priority  is  subject  to  some  necessary 
limitations,  which  are  thus  explained  by  the  supreme  court  of 
the  United  States :  "Seizing  upon  some  remarks  in  the  opinion 
of  the  court  in  the  case  of  Freeman  v.  Howe,  not  necessary  to 
the  decision  of  that  case,  to  the  effect  that  a  court  first  obtain- 
ing jurisdiction  of  a  cause  has  a  right  to  decide  every  issue 
arising  in  the  progress  of  the  cause,  and  that  the  federal  court 
could  not  permit  the  state  court  to  withdraw  from  the  former 
the  decision  of  such  issues,  the  counsel  for  plaintiff  in  error 
insists  that  the  present  case  comes  within  the  principle  of 
those  remarks.  It  is  scarcely  necessary  to  observe  that  the 
rule  thus  announced  is  one  which  has  often  been  held  by  this 
and  other  courts,  and  which  is  essential  to  the  correct  admin- 
istration of  justice  in  all  countries  where  there  is  more  than 
one  court  having  jurisdiction  of  the  same  matters.  At  the 
same  time,  it  is  to  be  remarked  that  it  is  confined  in  its 
operation  to  the  parties  before  the  court,  or  who  may,  if  they 
wish  to  do  so,  come  before  the  court  and  have  a  hearing  on 
the  issue  so  to  be  decided.  This  limitation  was  manifestly 
in  the  mind  of  the  court  in  the  case  referred  to,  for  the  learned 

(/H)Conovor?).  JIayor,  25Barl..524.  mortgage,    suits    at    law    and    iu 

*As  to  co-ordinate  courts  the  plea  equity   may  be   pursued    simulta- 

of    a   pending   suit   will   justify  a  neously    until    the    debt    is   satis- 

dismissal  of  the  later  action.    Clay-  fied.     Ober  v.  Gallaher,   93    U.    S. 

well  V.  Sud  lerth,  77  N.  C.  287.  199. 

However,  in  the  foreclosure  of  a 


I 


EXCLUSIVE    AND    CONCURRENT    JURISDICTION.  153 

judge  who  delivered  the  opinion  goes  on  to  show  that  per- 
sons interested  in  the  possession  of  the  property  in  the  cus- 
tody of  the  court  may,  by  petition,  make  themselves  so  far 
parties  to  the  proceedings  as  to  have  their  interests  protected, 
although  the  persons  representing  adverse  interests  in  such 
case  do  not  possess  the  qualitication  of  citizenship  necessary 
to  enable  them  to  sue  eacli  other  in  the  federal  courts.  The 
proceeding  alluded  to  here  is  one  unusual  in  any  court,  and  is 
only  to  be  resorted  to  in  the  federal  courts  in  extraordinary 
cases,  where  it  is  essential  to  prevent  injustice  by  an  abuse  of 
the  process  of  the  court,  which  cannot  otherwise  be  remedied. 
But  it  is  not  true  that  a  court  having  obtained  jurisdiction  of 
a  subject-matter  of  a  suit,  and  of  parties  before  it,  thereby 
excludes  all  other  courts  from  the  right  to  adjudicate  upon 
other  matters  having  a  very  close  connection  with  those  before 
the  lirst  court,  and,  in  some  instances,  requiring  the  decision 
of  the  same  questions  exactl3\  In  examining  into  the  exclu- 
sive character  of  the  jurisdiction  of  such  cases  we  must  have 
regard  to  the  nature  of  the  remedies,  the  character  of  the 
relief  sought,  and  the  identity  of  the  parties  in  the  different 
suits.  For  example,  a  part}'  having  notes  secured  by  a  mort- 
gage on  real  estate,  may,  unless  restrained  by  statute,  sue  in 
a  court  of  chancery  to  foreclose  his  mortgage,  and  in  a  court 
of  law  to  recover  a  judgment  on  his  notes,  and  in  another 
court  of  law,  in  an  action  of  ejectment,  to  get  possession  of  the 
land.  Here,  in  all  the  suits,  the  only  question  at  issue  may 
be  the  existence  of  tlie  debt  mentioned  in  the  notes  and  mort- 
gage; but,  as  the  relief  sought  is  different,  and  the  mode  of 
proceeding  is  different,  the  jurisdiction  of  neither  court  is 
affected  by  the  proceeding  in  the  other.  And  this  is  true, 
notwithstanding  the  common  object  of  all  the  suits  may  be  the 
collection  of  the  debt.  The  true  effect  of  the  rule  in  these 
cases  is  that  the  court  of  chancery  cannot  render  a  judgment 
for  the  debt,  nor  judgment  of  ejectment,  but  can  only  proceed, 
in  its  own  mode,  to  foreclose  the  equity  of  redemption,  by 
sale  or  otherwise.  The  first  court  of  law  cannot  foreclose  nor 
give  a  judgment  in  ejectment,  but  can  render  a  judgment  for 
the  payment  of  the  debt,  and  the  third  court  can  give  the 


154  EXCLUSIVE    AND   CONCURRENT   JURISDICTION. 

rt'lic'f  by  ejectment,  but  neither  of  the  others.  And  the 
jiuljj;nieut  of  each  court  in  the  matter  properly  before  it  is 
bii)(ling  and  conchisive  on  all  the  other  courts.  This  is  the 
illustration  of  the  rule  where  the  parties  are  the  same  in  all 
three  of  the  courts.  The  limitation  of  the  rule  must  be  much 
stronger,  and  must  be  applicable  under  many  more  varying 
circumstances,  when  persons  not  parties  to  the  first  proceed- 
ing are  prosecuting  their  own  separate  interests  in  other 
courts. "(») 

And  so  the  rule  seems  chiefly  or  solely  to  be  confined  to 
cases  where  the  parties  are  identical,  or  are  privy,  and  where 
the  object  of  suit  and  the  points  involved  are  similar  in  all 
respects.(o)  See  my  work  on  "Ees  Adjudicata"  for  further 
explanation. 

(»)Buck  V.  Colbath,  3  Wall.  344.  {o)Putnam  v.  New  Albany,  4  Bis. 

C.  C.  369. 


SUMMARY   PROCEEDINGS.  155 


CHAPTEE  XX. 

SUMMAKY    PROCEEDINGS. 

$  161.  Former  scope  of  such  proceedings. 
162.  Authority  must  be  strictly  pursued. 

§  161.  This  topic  needs  not  detain  us  long,  as  it  is  quite 
restricted,  and  closely  guarded.  Formerly,  this  kind  of  juris- 
diction was  exercised  by  giving  common  law  courts  a  quasi 
equitable  power,  in  small  amounts,  as  in  matters  of  account 
under  twenty  i^ounds  sterling; (a)  and  damages  for  occupation 
where  the  title  to  land  did  not  come  into  the  controversy.  (/^) 
Landlords'  distress  warrants  are  somewhat  in  the  nature  of  a 
summary  action.  However,  this  is  chiefly  confined  now,  where 
it  has  any  operation  at  all,  to  eminent  domain  jiroceedings, 
tax  collections,  and  proceedings  against  court  officers ;  and  ta 
contempts. 

§  162.  The  rule  of  strict  pursuance  of  authority  prevails, 
as  to  all  courts,  herein.  The  supreme  court  of  Illinois  say: 
"Since  the  determination  of  the  case  of  Rex  v.  Croke,  1 
Cowper,  30,  the  rule  has  been  recognized,  and  uniformly 
adhered  to,  that  a  special  authorit}^  delegated  by  legislative 
enactment,  to  particular  persons,  or  summary  j^roceedings, 
without  personal  service,  to  take  away  a  man's  property  and 
estate  against  his  consent,  must  be  strictly  pursued,  and  it 
must  so  appear  on  the  face  of  the  proceedings.  This  court 
has  adopted  and  acted  upon  this  rule,  and  it  is  believed  every 
state  in  the  Union  has  done  the  same,  in  sale  of  lands  for 
taxes,  and  in  aj^propriating  private  property  for  public  uses. 
This  rule  is  so  uniform  and  familar  that  it  would  be  useless 
to  quote  authorities  in  its  support.     To  give  the  court  juris- 

(rt)Le\vIs  V.  Kemp,  6  Kicii.  (S.  C.)  (i'>)Liglitner  v.  llammeter,  3  Brev. 

515.  (S.  C.)  12. 


15G  SUMMARY    PROCEEDINGS. 

diction,  the  authority  must  be  strictly  pursued,  and  a  failure 
to  do  so  renders  the  whole  proceeding  void.  The  statute 
ahiiie  confers  the  authority,  and  the  mode  it  prescribes  can 
alone  be  adopted. "(c)  And  there  is  no  distinction  herein 
between  superior  courts  of  general  jurisdiction,  and  inferior 
courts  of  limited  jurisdiction. (f/) 

And  the  rule  applies  to  a  proceeding,  by  motion,  against  a 
constable  and  his  sureties  for  not  returning  an  execution 
issued  by  a  justice  of  the  peace, (e)  or  for  money  collected  by 
the  constable.  (/) 

However,  if  a  statute  giving  summary  powers  to  a  court 
having  a  common  law  jurisdiction  does  not  detail  the 
methods  of  proceeding  the  principles  of  the  common  law 
must  guide. (^)  In  New  York  a  landlord's  proceeding  must 
show  venue.  (^) 

(c)City  of  Chicago  ».  Railroad,  20  (/)Bam'  v.  Patterson,  3  Humph. 

111.  290.  314. 

(d)Foster  v.  Glazener,  27  Ala.  397.  (s-jStewartw.  Walters,  38 N.  J.  274. 

(e)Canuon    v.    "Wood,    2    Sneed.  (/i)People  ex  rel.  v.  De  Camp,  12 

(Term.)  177.  Hun.  378. 


JUDGES.  157 


CHAPTER  XXL 

JUDGES. 

§  163.  Judicial  purity. 

164.  Age — dejur'e  and  de  facto  judges 

165.  Residence. 

166.  Official  and  personal  bias. 

167.  Ministerial  acts  wliich  do  not  disqualify. 

168.  Mere  partisan  feeling  not  a  disqualification. 

169.  Having  acted  as  counsel. 

170.  Kindred. 

171.  Pecuniary  interest — fiduciary  positions — surety. 

172.  Summary  of  disqualifications — ^Buford  case. 

173.  Procedure  in  case  of  disqualification. 

174.  Substitution. 

175.  Liability  of  judges  for  official  acts. 

176.  Wilful  abuses — forfeiture. 

§  168.  it  would  be  a  mere  solecism  to  remark  that  the 
efficiency  of  courts  depends  on  the  character  of^the  judges 
therein  as  to  intelligence  and  uprightness.  However,  it  is 
not  needful  that  a  judge  should  be  a  very  fiend,  like  the 
infamous  Lord  Jeffreys,  in  order  to  perpetrate  irreparable 
mischief  on  community.  Even  a  minor  degree  of  stupidity 
or  arrogance  on  the  bench  may  be  sufficient  to  subvert  all  the 
ends  of  justice.  And  it  is  desirable  always  that  the  judicial 
system  should  be  scrupulously  shielded  from  the  influence  of 
partisan  rancor;  and  so  it  should  never  be  held  as  a  deposi- 
tory of  political  rewards,  to  be  bestowed  for  partisan  services. 
But  we  must  not  depart  into  a  disquisition  on  the  merits  of 
the  system,  but  proceed  to  notice  the  legal  safeguards  which 
have  been  thrown  around  it  as  to  the  qualifications  and  dis- 
qualifications of  those  who  are  called  to  administer  justice 
between  the  citizens  of  our  common  country,  and  others  who 
may  seek  redress  at  their  hands  under  the  protection  of  our 
laws. 


158  JUDGES. 

§  KU.  It  is  legitimate  to  prescribe  a  certain  age  as  a 
siandanl  of  qiialijfication ;  and  it  does  not  follow  that  even 
every  voter  should  be  eligible.  It  is  not  uncommon  to  fix  the 
period  of  eligibility  at  thirty  years.  Yet  where  this  is  fixed, 
and  one  is  appointed  judge  within  age,  it  will  have  the  effect 
merely  of  leaving  him  liable  to  be  removed  by  a  proper  pro- 
ceeding at  any  time  ;  but  until  this  is  done  he  will  be  regarded 
as  a  judge  de  facto,  though  not  de  jure,  and  his  acts  will  be 
valid  and  binding,  and  his  competency  cannot  be  inquired 
into  by  parties  before  him,  but  must  be  the  subject  of  a  direct 
inquiry  instituted  for  the  purpose  of  removing  him ;  (a)  and 
that,  too,  by  the  state,  because,  acting  under  appointment  and 
commission,  he  is  judge  de  jure  as  to  all  citizens,  although 
subject  to  be  displaced  by  (pio  warranto  at  the  suit  of  the 
commonwealth. (//)  And  hereon  the  supreme  court  of  Penn- 
sylvania very  tersely  remarks:  "If  a  private  suitor  may  not, 
by  the  appropriate  process,  question  a  judge's  commission 
wlien  he  has  a  chance  to  be  heard  in  defence  of  his  right, 
much  less  may  such  a  suitor  do  it  collaterally  in  an  action  to 
which  the  judge  is  not  a  party,  and  where  he  cannot  be  heard 
by  himself  or  counsel.  If  this  defendant  may  plead  to  tlie 
jurisdiction  of  the  judge,  every  defendant  in  Montour  county, 
whether  in  civil  and  criminal  proceedings,  may  do  the  same ; 
and  the  judge,  instead  of  trying  the  rights  of  parties,  will  be 
continually  engaged  in  defending  his  own;  not  merely  in 
defending  them,  but  in  adjudicating  them,  contrary  to  that 
law,  which  is  too  elementary,  even  for  the  bill  of  rights,  that 
forbids  a  man  to  judge  his  own  cause. 

"He  is  a  judge  de  facto,  and,  as  against  all  parties  but  the 
commonwealth,  he  is  a  judge  de  jure  also.  If  the  legislation, 
or  appointment,  is  to  be  tested,  it  must  be  at  the  instance 
of  the  attorney  general,  or  of  some  public  officer  representing 
the  sovereignty  of  the  state.*     The  notion  that  the  functions 

('OKli'ckburn   v.    Stute,   3   lload,  takes    a   seat    in    the    leffishilurc. 

(Tenn.)  690.  (Communwealtli    «.    Ilawkc^.    ]::.; 

(i)Clark  V.  Com.  ;]!)  Pa.  Bt.  138.  Mass.  525,)  yet  the  question  c.iniK.t 

♦And  thus,  in  Mas.sachusetts,  al-  be  tirought  forward  by  a  paity  w'.io 

though  a  judge  is  disqualified  who  h.s.s  been  convicted  before  hlni  nv.  1 


JUDGES.  159 

of  a  public  officer,  or  of  a  corporation  existing  by  authority 
of  law,  can  be  drawn  in  question,  not  as  to  the  mode  of  their 
exercise  but  as  to  their  right  of  existence,  except  at  the 
pleasure  of  the  sovereign,  is  a  mistake  that  springs  from  the 
too  r)revalent  misconception  that  it  is  the  duty  of  everybody 
to  attend  to  public  affairs.  Public  officers  are  provided  for 
public  duties,  and  the  remedy  for  delinquencies  is  of  frequent 
recurrence,  is  specific  and  effectual.  This  plea  to  the  juris- 
diction cannot  avail  the  defendant  even  to  raise  the  consti- 
tutional question  intended.  "(Z)) 

This,  however,  does  not  apply  to  a  special  judge,  and  his 
authority  may  be  questioned  by  a  party,  (c)  It  is  only  one 
acting  directly  under  the  sovereign  authority  of  the  state  who 
can  claim  the  immunity. 

§  165.  In  Michigan,  one  needs  not  to  be  a  resident  of  the  cir- 
cuit in  order  to  his  eligibility  to  hold  the  office  of  judge  therein, 
but  if  he  is  actually  residing  in  the  circuit  when  elected  and 
afterwards  removes  from  it,  he  vacates  his  office, (rf)  which 
looks  like  a  very  strange  anomaly  indeed.  One  would  sup- 
pose it, will  be  all  one  way  or  all  the  other. 

§  166.  A  judge  should  be  free  from  bias,  official  or  per- 
sonal. And  so,  where  a  probate  judge  was  also  a  selectman 
of  the  town,  and  therefore  a  party  respondent,  by  virtue  of  the 
latter  office,  to  an  application  for  the  appointment  of  a  con- 
servator over  a  person  in  the  town,  which  appointment  usually 
belongs  to  the  probate  judge,  it  was  held  he  was  disqualified 
to  act  as  judge  therein. (e)  And,  formerly,  in  Massachusetts, 
a  magistrate  had  no  jurisdiction  in  an  action  wherein  the 
inhabitants  of  his  town  were  summoned  as  trustees  for  the 
defendant. (/)  But  this  official  or  local  disqualification  has 
not  been  carried  so  far  as  to  j^reclude  a  justice  of  the  peace, 
who  acted  as  coroner  in  the  inquest  upon  a  dead  man,  from 
acting  as  examiner  in  the  charge  of  murder  against  the  man 


appealed.   Coniinonvvealtli  v.  Tnl)er,  (r) White  v.  Koagan,  25  Ark.  (i24. 

123  Mass.  253.     Nor  upon  a  writ  of  ((Z)Hoyce«.  Goodwin,  22  Midi. 497. 

hahens  corpus.     Sheehan's  Case,  122  ((^jNettleton's   Appeal,  28    Conn. 

Mass.  445.  270. 

(i)Clark  V.  Com.  29  Pa.  St.  138.  (/jCiark  «.  Lamb,  2  Allen,  3'J7.  ■ 


H\Q  JUDGES, 

alleged  to  have  caused  the  death  ;(^)  nor  even  to  exclude  a 
judge  who  was  formerly  on  a  vigilance  committee  which  had 
banished  the  defendant  for  another  and  distinct  crime  from 
the  state ;(/i)  nor  to  forbid  a  justice  of  the  peace  to  take 
cognizance  of  a  cause  in  which  he  once  acted  as  arbitrator, 
although  it  was  suggested  he  ought  not  to  do  so  as  a  matter 
of  good  taste  ;(i)  nor  to  debar  a  magistrate  who,  being  also 
clerk  of  court,  has  official  duties  to  perform  as  clerk  on  an 
appeal  even  from  his  own  decision  ;(j)  nor  to  prohibit  a  jus- 
tice from  hearing  the  disclosure  of  a  poor  debtor,  because  he 
had  aided  the  debtor  to  prepare  the  disclosure,  although  this 
also  was  reckoned  in  bad  taste. (/b)    (See  §  172,  infra,  note.) 

But  holding  a  post-office,  or  any  United  States  office,  may 
properly  disqualify  one  from  holding  the  office  of  judge  at 

all.(0 

§  167.  The  jurisdiction  of  a  magistrate  in  an  action  for 
possession  of  land  is  not  necessarily  ousted  by  his  having 
executed  the  lease  under  which  the  premises  were  held,  and 
was  the  only  subscribing  witness;  nor  by  his  having  written 
the  demand  for  possession,  (m) 

§  168,  Neither  does  a  mere  partisan  feeling  necessarily 
disqualify,  notwithstanding  it  may  make  matters  hot  for  some 
or  all  the  parties  to  a  suit,  and  is,  withal,  extremely  out  of 
place  in  a  judge ;  yea,  moreover,  although  political  intrigues 
have  led  to  terrible  corruptions,  when  the  judicial  seat  was  less 
guarded  by  legal  restrictions  than  now.  If  there  should  be 
such  a  thing  as  an  elective  judiciary  in  our  republic,  at  least 
the  terms  of  office  should  be  long  in  their  tenure. 

But  the  supreme  court  of  California  say:  "The  exhibition 
by  a  judge  of  partisan  feeling,  or  the  unnecessary  expression 
of  an  opinion  upon  the  justice  or  merits  of  a  controversy, 
though  exceedingly  indecorous,  improper  and  reprehensible, 
as  calculated  to  throw  suspicion  upon  the  judgments  of  the 


(«7)Forcle    v.    Commonwealth,   16  (7)  Commonwealth  0,  Keenan,  97 

Gratt.  r,48.  Mass.  591. 

(/t)People  V.  Mahoney,  18  Cal.  185.  (A)Lovering  v.  Lamson,  50Me.335. 

(t)Batchelder   «.    Norse,   35   Vt.  (?)Hoglan«.  Carpenter,  4 Bush. 89. 

5^'  (m)Cook  V.  Bertli,  102  Mass.  373. 


JUDGES.  IGl 

court,  and  bring  the  administration  of  justice  into  contempt, 
are  not,  under  our  statute,  sufficient  to  authorize  a  change  of 
venue  on  the  ground  that  the  judge  is  disqualified  from  sitting. 
The  law  establishes  a  different  rule  for  determining  the  quali- 
fication of  judges  from  that  applied  to  jurors.  The  reason 
of  this  distinction  is  obvious.  The  province  of  the  jury  is  to 
determine  from  the  evidence  the  issues  of  fact  presented  by 
the  parties,  and  their  decision  is  final  in  all  cases,  where  there 
is  a  conflict  of  testimony.  Therefore,  the  expression  of  an 
unqualified  opinion  on  the  merits  of  the  controversy,  which 
evinces  such  a  state  of  mind  as  renders  him  less  capable  to 
weigh  the  evidence  with  entire  impartiality,  is  sufficient  to 
exclude  a  juror.  The  province  of  a  judge  is  to  decide  such 
questions  of  law  as  may  arise  in  the  progress  of  a  trial.  His 
decisions  upon  these  points  are  not  final,  and  if  erroneous  the 
party  has  his  remedy  by  bill  of  exceptions  and  appeal.  If 
forming  or  expressing  an  opinion  upon  the  merits  of  the  con- 
troversy was  sufficient  to  disqualify  a  judge,  it  would  be  nec- 
essary that  the  venue  of  a  cause  should  be  changed  after  a 
mistrial,  or  the  granting  of  a  new  trial ;  for  after  hearing  the 
evidence  and  argument  of  counsel  upon  a  mistrial  the  judge 
would,  of  course,  have  formed  an  opinion  upon  the  merits  of 
the  controversy,  and  the  fact  of  granting  a  new  trial  is  often 
equivalent  to  the  expression  of  such  opinion,  "(/i)  Yet,  the 
general  rule  is  that  a  judge  should  not  express  an  opinion  so 
as  to  bias  the  jury. 

§  169.  A  judge  cannot  properly  act  as  counsel  in  his  own 
court,  nor  decide  a  cause  in  which  he  has  once  been  counsel, 
although  this  is  not  to  be  pressed  so  far  as  to  hold  that  where  a 
county  judge  has  been  of  counsel  for  some  parties  interested  in 
an  administrator's  sale  of  real  estate,  he  cannot  grant  a  license 
for  the  sale;(o)  nor  to  hold  that  his  acts  are  absolutely  void 
instead  of  voidable ;  (/?)  or  that  the  objection  cannot  be  waived 
by  the  parties,  either  expressly  or  by  proceeding  in  the  cause.  (;?) 

(7?,)McCauley   v.   Weller,   12   Cal.  tend  to  a  subscMjnent   independent 

523.  suit])(itwvenlhi'.'a!iie parties.   Stew- 

(o)Morganfl.  Hammett,  23  Wis.40.  art  v.  Mix,  SlieritT,  30  La.  An.  1035. 

Nor  doi's  the  disquulilication  ex-  (^jStearnaw.  Wright,  51  N.  II.  600. 

V.l— 11 


[(',0  JUDGES. 

Thus,  a  ]m)l)rtte  judge  has  been  held  not  disqualified  by  hav- 
ing jtivviously  acted  as  counsel  in  regard  to  the  settlement  of 
an  estate,  unless  objection  is  made  on  that  ground. (5)  And 
so,  tiie  parties  consenting,  a  judge  who  has  been  of  counsel 
may  render  a  valid  decree  in  chancery. (r) 

However,  without  such  consent,  expressed  or  implied,  a 
judge  cannot  properly  exercise  jurisdiction  in  any  cause 
where  he  has  been  of  counsel.  And  so  carefully  is  this  mat- 
ter guarded  all  around  in  order  to  keep  distinct  the  offices  Of 
attorney  and  judge,  that,  on  the  other  hand,  in  Michigan,  it 
is  held  that  a  judge  who  has  resigned,  intending  to  act  no 
more  officially,  is  not  allowed  to  officiate  in  a  criminal  case, 
as  assistant  prosecutor,  before  the  time  fixed  for  his  resigna- 
tion to  take  effect.  And  the  court  said  that  this  was  not  a 
matter  of  indifference,  but  opposed  to  public  policy,  and, 
therefore,  subject  to  exception. (s) 

^j  170,  A  judge  should  not  be  subject  to  the  bias  of  kindred, 
which,  indeed,  may  work  either  way,  to  the  advantage  or  dis- 
advantage of  the  related  person.  So,  where  a  defendant 
objected  to  the  jurisdiction  on  the  ground  that  he  was  a 
brother  of  the  judge,  and  it  was  replied  that  it  was  not  for  him 
to  complain  of  this,  the  supreme  court  remarked  that  "the 
delicacy  of  the  position  would  lead  many  a  conscientious 
judge  to  lean  against  his  relative;  for  fear  of  leaning  in  his 
favor,  in  striving  to  stand  perfectly  erect,  to  bend  a  little  back- 
ward. "(^)  That  the  defendant  married  the  sister-in-law  of 
the  judge's  wife  is  held  too  remote  to  disqualify,  {Fort  v. 
West,  53  Ga.  584,)  although  the  disqualifying  relationship 
may  be  either  by  natural  kindred,  or  by  marriage;  and, 
within  the  prohibited  degrees,  the  disqualification  is  absolute. 
The  proceedings  are  void  even  in  the  absence  of  objection ;(«) 
and  it  is  the  business  of  the  judge  himself  to  notice  the  facts, 

(7)Platt  V.  Railroad,  577.  judge's  wife  is  a  party  is  sufficient 

(/•j.Jcwett  V.  Miller,  12  la.  86.  to   recuse   him   on   the   ground   of 

(.s)IJashford«. People, 24 Mich. 245.  personal   interest,    whether   slie   is 

(OKelleyv.  Hacket,  10  Ind.  300.  separate  from  him   in  property  or 

(v)Schoonmakerfj.  Clearwater,  41  not.      Hyam's    Succession,   30    la. 

Barb.  202,  and  cases  cited.  An.  460. 
In  Louisiana  tlie   fact   that  the 


JUDGES.  163 

and  proceed  no  further  in  the  cause  than  to  regulate  the 
calendar,  or  arrange  the  order  of  husiness,  assigning  the  cause 
its  place,  (r)  And  even  an  order  dismissing  the  action  is 
void,  because  he  is  incapacitated  to  make  any  order. (i?) 

Eelationship  is,  perhaps,  in  most  of  the  states,  estimated 
under  the  civil  law,  and  the  degree  of  consanguinity  is  the 
third  therein,  at  which  the  disqualification  of  a  judge  is 
fixed, (»•)  including,  therefore,  the  kindred  of  first  cousins,  but 
nothing  more  remote  than  that  of  second  cousins. (.r) 

The  matter  seems  to  have  been  carried  to  an  extreme,  in 
Vermont,  as  to  marriage  relationship,  since  it  has  been  held 
that  one  cannot  even  sit  as  auditor  on  a  trial  on  a  book 
account  whose  wife  is  first  cousin  to  the  wife  of  one  of  the 
parties  ;  and  it  is  intimated  that  the  objection  might  be  taken 
at  a  late  stage  in  the  progress  of  the  cause, (//) 

In  Georgia,  where  one  of  the  parties  was  an  executor,  and 
married  the  sister  of  the  wife  of  one  of  the  judges,  it  was  held 
the  fact  worked  no  disqualification. (^) 

A  judge  of  i^robate  is  not  disqualified  from  acting,  in  Mas- 
sachusetts, in  regard  to  a  will,  and  the  estate  under  it,  simply 
because  his  father-in-law  is  a  creditor  of  the  estate,  if  the 
father-in-law  is  not  a  party  to  the  proceedings;  otherwise, 
he  is  incompirtent;  as,  also,  in  the  case  of  a  brother-in-law.  (/<) 

§  171.  More  especially,  where  a  judge  is  pecuniarily  inter- 
ested, he  is  disqualified;  since  no  man  can  be  judge  in  his 
own  cause.*     But  it  has  been  held  that,  in  general,  it  must 

(«)People  V.  Guerra,  24  C'al.  76.  *In    Lonisi.ina,    a    parish    judne 
(tfj)Ibid;  De  La  Guerra  t).  Benton,  who  is  interest t'd  in  a  cu use  before 
23  Cal.  593.  him  should  refer  it  to  the  district 
(^)Brady  v.  Kicliardson,  18  Ind.  1.  judge  ;  but  if  he  is  not  interested, 
(?/)Clapp  «.  Foster,  34  Vt.  583.  nor  of  kindred  by  blood  or  marriage, 
(j)Deupree    «.    Deupree,    45    Ga.  but  otherwise  disqualified,  he  may 
414.                               ■  appoint  a  lawyer  to  act  as  temjw- 
(«)Aldrich,  appellant,   110   Mass.  rary  judge  in  the  matter.     State  «. 
19(1.  McCoy,  29    La.   An.   593;    State   v. 
But  where  the  father  of  a  probate  Williams,  Id.  785.     This  is  a  con- 
judge  is  a  creditor  of  an  estate,  and  stitutional  power;  but  tiie  lawyer 
joins  the  administrator  in  a  jietition  so  appointed  is  not  obliged  to  .serve  ; 
to  sell  lands,  tlie  judge  should  not  nor  is  he  obliged  to  act  even  after 
pass  on  tlie  application.     Lacroix,  he   has  accei)ted  and  passed  upon 
Succession,  30  La.  An.  924.  some    preliminaiy    matters   in   the 


1(54  JUDGES. 

bo  a  direct  and  immediate  interest  in  the  cause  or  proceed- 
ing. (/>)  And  so,  where  a  probate  judge  receipted  for  confed- 
erate treasury  notes  as  full  payment  of  a  decree  rendered  in 
liis  court,  and  afterwards  the  guardian  who  had  paid  the 
notes  made  a  motion  to  quash  a  fi.  fa.  issued  thereon,  and 
to  enter  satisfaction  on  account  of  the  payment  of  the  con- 
federate notes,  his  jurisdiction  was  sustained,  on  appeal. (/y) 

The  remote  and  minute  corporate  interest  of  a  police  judge 
in  fines  collected  is  no  disqualification  for  taking  jurisdiction 
of  the  offences  from  which  the  fines  arise. (c) 

And  the  fact  that  a  judge  is  joint  owner  with  an  estate  in 
a  tract  of  land,  does  not  deprive  him  of  jurisdiction  of  the 
estate  in  matters  not  pertaining  to  that  tract  of  land.('rf)  And 
60,  if  the  mayor  is  the  owner  of  a  lot  on  a  street  to  be  wid- 
ened, this  does  not  disqualify  him  to  preside  in  the  mayor's 
court  before  which  the  proceedings  are  had.(e) 

And,  in  general  terms,  it  is  declared  that  the  incapacity  of 
interest  does  not  extend  to  merely  formal  orders,  and  proba- 
bly not  to  a  case  in  which  no  other  judge  could  act.(.f) 

But  holding  the  relation  of  administrator  to  an  estate 
involves,  necessarily,  an  obligation  to  act  for  the  interest  of 
that  estate,  and  so  a  judge  sustaining  such  relation  cannot 
act  in  matters  where  the  estate  is  interested. (f/)  And  so  of 
any  other  fiduciary  relation. (</)  And  so  a  judge  having  a 
power  of  attorney  to  receive  money  for  heirs,  on  a  percent- 
age, or  for  reward,  cannot  act  in  the  estate  from  which  the 
money  is  to  come,  further  than  arranging  the  calendar  and 
changing  the  venue,  (/i) 

case.     State  ex  rel.  Brame,  29  La.  vacate  the   judgment.      Collins   v. 

An.  816.     In  such  case  no  writ  of  Hammock,  59  Ala.  448. 

mandamus  will  lie  against  the  re-  (c)State  v.  Intoxicating  Liquors, 

calcitrant  substitute.     State  ex  rel.  54  Me.  504 ;  Commonwealth  v.  Bur- 

Chargois,  30  La.  An.  1102.  ding,  12  Allen,  500. 

(ft)Ellis  V.  Smith,  42  Ala.  349.  (ff)Glaveckefj.Tijirina.24Tex.663. 

Moreover,    an   objection   on   the  (e)]\[ayor  v.  Long.  31  Mo.  3(j9. 

ground  of  pecuniary  interest  may  (/)IIeydenfelat  «.  Towns,  27  Ala. 

be  waived   by  failing   to  object  at  424. 

ihe   trial.     Such   objection   cannot  (^rjCabot  Bank  Appeal,  26  Conn, 

be  allowed  on  a  subsetiuent  motion  15. 

to  quash  the  execution,  or  even  to  (/<)Estate  of  White,  37  Cal.  192. 


JUDGES.  1G5 

If  a  judge  is  surety  on  an  administration  l)ond  he  is  incom- 
petent to  act  with  regard  to  the  estate.  If  the  administrator 
is  guardian  for  a  distributee,  the  judge  is  also  disqualified, 
thus  being  surety,  from  taking  jurisdiction  of  the  settlement 
of  the  guardian's  accounts.  And  even  if  the  guardian  h  re- 
moved, and  a  successor  appointed,  the  change  does  not  restore 
the  competency  of  the  judge. (i) 

Where  a  judge  was  administrator,  and,  as  such,  contracted 
to  convey  lands  belonging  to  the  estate  to  a  person  who  gave 
his  note  for  the  consideration  money,  which  note  the  admin- 
istrator discounted,  and  applied  the  avails  to  discharging 
claims  against  the  estate,  and,  the  buyer  being  unable  to 
meet  the  note,  advanced  him  money  out  of  the  funds  of  the 
estate,  holding  the  lands  as  security — they  not  being  con- 
veyed— and,  afterwards,  the  debtor  made  an  assignment  for 
the  benefit  of  his  creditors,  it  was  held  that  such  an  interest 
disqualified  the  judge  from  acting  officially  in  any  matter  per- 
taining to  the  debtor's  estate  under  the  assignment. (j) 

In  Texas,  an  objection  on  the  ground  of  interest  cannot  be 
waived  by  the  parties,  but  the  proceedings  are  wholl}^  void.(7i) 
But  it  appears  to  be  different  in  Iowa,  where  the  objection 
must  be  made  below,  which  intimates  that  the  proceedings  are 
merely  error,  but  valid  until  reversed — that  is,  are  not  abso- 
lutely void. (I)  And  it  is  expressly  so  decided  in  New  Hamp- 
shire, except  under  an  express  statutory  prohibition,  when  all 
the  proceedings  are  void.(//()  And  even  where  a  judge  takes 
a  matter  under  advisement  and  his  term  expires  before  he 
renders  the  decision,  no  consent  of  parties  can  give  effect  to 
the  decision  as  a  judicial  act.(n)  Yet,  in  doubtful  cases,  one 
who  alleges  incapacity  has  the  burden  of  proof  on  him  to 
show  it,(o) 

(e'jWilson  «.  Wilson,  36  Ala.  659.  (wjMoses  v.  Julian,  45  N.  H.  52. 

(_/)C'abot  Bank  Appeal,  26  Conn.  Bee  note  above  under  (h). 

15.  («.)Coopwood  V.  Prewett,  30  Mis3. 

(^•) Chambers  t;.  Hodges,  23  Tex.  212. 

112.  (o)Simon  v.  Haitieigh,  21  La.  An. 

(?)  Ellsworth  c.  Moore,  7  Clarke,  607. 
i87. 


H^,(i  JUDGES. 

§  172.  The  supreme  court  of  New  Hampshire  has  summed 
up  the  matter  of  disqualification,  and  collected  the  author- 
ities, thus :  (1)  A  judge  who  is  satisfied  of  his  legal  incom- 
petency should,  without  objection,  refuse  to  sit.  (2)  But  if  he 
knows  nothing  about  it  until  his  attention  is  drawn  to  it  by 
parties,  he  should  not  too  readily  abandon  his  seat,  hut  wait 
for  clear  proof,  and  a  judge  should  not  be  permitted  to  with- 
draw without  sufficient  grounds.  (3)  Even  a  judge  disquali- 
fied may  make  all  mere  formal  orders,  or  such  as  may  be 
needful  for  a  continuance.  (4)  In  cases  where  the  statute  does 
not  make  the  proceedings  void,  parties  must  object  before 
trial,  or  the  objection  will  be  considered  waived,  unless  it  be 
shown  affirmatively,  after  trial  commenced,  that  the  party  was 
not  aware  of  the  ground  of  objection,  arid  was  not  in  fault  for 
his  ignorance.  (5)  And,  unless  the  statute  forbids,  parties  may 
expressly  waive  objection — which  is  called  in  civil  and  Scotch 
law  prorogated  jurisdiction  ;  and  this  may  be  tacitly  conferred 
by  bringin<j  an  action  before  a  judge  known  to  be  disquali- 
fied. (('))  But  a  party  who  has  once  properly  declined  the 
jurisdiction  of  a  judge  will  not  be  deemed  to  have  waived  it 
by  any  subsequent  defence,  (7)  At  common  law,  the  recusa- 
tion of  a  judge  is  merely  error.  (8)  But  statutes  may  make 
proceedings  void.  (9)  No  man  ought  to  be  judge  in  his  own 
cause,  is  a  maxim  aimed  at  the  most  dangerous  source  of  par- 
tiality ma  judge.  (10)  It  is  not  necessary  that  a  judge  be  a 
party  in  the  cause,  to  create  this  disqualification,  but  only 
that  he  have  any  the  slightest  pecuniary  interest  in  the 
result,  not  merely  possible  and  contingent.  The  interest 
which,  in  former  times,  would  have  disqualified  a  witness,  is 
sufficient.  (11)  Members  of  partnerships  and  corporations, 
though  their  interest  may  be  very  trifling — except  in  cases 
where  one  is  merely  an  inhabitant  of  a  municipal  corporation, 
entitled  to  receive  fines  and  costs  from  offenders — are  incom- 
petent. (12)  An  interest  in  the  question  merely,  without  a  pe- 
cuniary interest  in  the  result,  is  no  valid  ground  of  recusation, 
except  where  the  judge  has  a  lawsuit  pending  or  impending 
with  another  person  of  a  similar  nature.     (13)  Stockholding  in 


JUDGES.  107 

a  corporation  is  a  ground.  (14)  Kindred  or  affinity  by  marriage 
to  the  fourth  degree  (civil  law.)*  (15)  Friendly  or  hostile  rela- 
tions with  the  parties,  having  received  gifts,  the  relation  of  mas- 
ter and  servant,  guardian  and  ward,  enmity  and  threats,  bias  or 
prejudice,  judge  having  acted  as  counsel ;  but  not  the  mere  re- 
lation of  creditor,  lessee  or  debtor,  unless  the  suit  endangers 
financial  claims  of  the  judge,  indirectly  or  directly(j9) — may 
disqualify. 

In  the  Central  Law  Journal  for  October  24,  1879,  I  find  a 
novel  phase  of  disqualification  given  in  connection  with  the 
noted  Buford  case,  in  Kentucky.  Buford  murdered  one  of 
the  judges  of  the  court  of  appeals  on  account  of  an  opinion 
rendered.  He  was  condemned  for  the  murder,  and  appealed. 
And  it  was  held  that  the  associate  judges  who  had  concurred 
in  the  said  opinion  were  disqualified  by  their  interest  in  the 
event  of  the  appeal,  and  could  only  certify  the  fact  to  the 
governor,  who,  under  the  constitution,  can  thereon  appoint  a 
special  court. 

§  173.  When  the  judge  is  disqualified  there  are  two  meth- 
ods of  proceeding  in  the  matter;  the  first  b}^  transferring  the 
cause  to  another  court,  and  the  second  by  substituting  a 
special  judge;  or,  where  practicable,  a  regular  judge  from 
another  court. 

Sometimes  a  practicing  attorney  is  substituted;  but  it  is 
held  in  Indiana  that  the  judge  cannot  apj)oint  such  without 
the  agreement  of  the  parties,  for  such  a  special  judge  can 
have  no  other  authority  than  by  the  agreement. (^)  But  where 
a  statute  expressly  prescribes  such  substitution,  and  author- 
izes the  appointee,  by  the  selection  of  the  litigants,  to  exercise 
"all  the  functions  of  a  judge,"  this  provision  clothes  him  with 
judicial  authority,  and  he  stands  as  does  the  regular  judge 
while  his  pro    tempore   appointment   lasts. (r)     But,   in  any 

*Usua]ly  the  third,  I  tl)ink,  now.  of  an  information  filed  by  a  com- 

(/*)Moses  B.  Julian,  45  N.  II.  53,  mittee  of  such  association  in  order 

and  authorities  collected.  to  disbar  an  active  member  thereof. 

Where  a  judge  is  merely  an  hon-  Bowman's  Case,  67  Mo.  150. 

orary  niember  of  an   incorporated  {ry)Barnes  v.  State,  28  Ind.  S2. 

bar  association,  this  fact  does  not  (/jllenderson    «.    Pope,    39    Ga. 

disqualify  him  from  acting  in  case  3G4.     See  p.  163,  note  *. 


IdS  JUDGES. 

event,  the  parties  must  select. (s)  And  then  the  functions  of 
the  pro  tempore  judge  continue  even  to  the  hearing  of  a  mo- 
tion for  a  new  trial;  and  even  if,  meanwhile,  the  regular 
judge  has  resigned;  and  it  is  held  error  in  the  pro  tern,  judge 
to  refuse  to  hear  the  motion  for  a  new  trial. (f) 

In  Kentucky  a  special  judge  may  he  elected  by  the  mem- 
bers of  the  bar,  instead  of  the  parties,  which  is  an  apparent 
anomaly. (j/)  And  there  is  another  in  Mississippi  where  a 
chancellor  interested  can  select  by  lot  a  member  of  the  bar, 
whose  functions,  however,  are  held  rather  ministerial  than 
judicial,  so  that  his  decrees  have  no  validity  until  signed  by 
the  chancellor. (p)  In  Texas,  also,  when  a  chief  justice  of  the 
county  court  is  disqualified,  the  statute  authorizes  an}"  two  of 
the  county  commissioners  to  act  in  his  place. (/r)  This,  how- 
ever, is  rather  a  substitution  of  judges  than  of  non-judges. 

So  in  Maine  a  justice  of  the  supreme  judicial  court  may 
preside  at  the  request  of  a  disqualified  judge  of  the  sujperior 
court. (^)     And  so  generally'. 

§  174.  As  to  substitution,  when  there  is  no  official  disqual- 
ification, it  is  held  in  Indiana  that  a  common  pleas  judge, 
holding  a  circuit  court,  has  jurisdiction  to  try  the  title  to 
i*eal  estate,  which  he  cannot  do  in  his  own  court. (/y)  And  he 
can  hear  all  causes  as  if  he  w^ere  the  regular  judge, (^'j  while, 
at  the  same  time,  he  is  not  disfranchised  of  his  own  official 
authority,  but  retains  it  likewise,  («)  unless  in  a  case  of  actual 
exchange.  (/>) 

However,  in  Missouri,  although  a  judge  may  assign  to  a 

(.vjSniith  «.  Frisbie,  7  Clarke  (la.)  the  parish  judge   legally    recused, 

^^'^-  the  parish  judge  of  an  adjoining 

(<)Clayton  v.  AVallace,  41  Ga.  270.  parish  may  act  in  the  matter.     Hy- 

(?/;Smithfl.Blakeman,8Bush.477.  am's  Succession,  ,30  La.  An.  460. 

(B)Ginistead  v.  Buckley,  32  Miss.  A  district  attorney,  who  is  a  prac- 

■''*^-  ticing  lawyer,  may  serve  as  a  sub- 

(«;)Glavecko  v.  Tijirina,  24  Tex.  stitute,  in  Louisiana.     State  ex  rel. 

^^•^-  Chargois,  30  La.  An.  1102. 

(.r)State  «.  Thomas,  56  Me.  492.  (//)AIalady  «.  IVIcEnery,  30Tud.  276. 

In  Louisiana,  where  an  injunction  (r)  Application  of  .Judges,  04  Pa. 

is  api)lied   for   which  falls  within  St.  ?A. 

the  juri.sdiclionof  tliedistrict  court,  (.^Bear  v.  Cohen,  Go  X.  C.  51L 

and  tlic  district  judge  is  absent  and  (AjIIawes  w.  Mauney,  66  N.  C.  221. 


JUDGES.  169 

neighboring  judge  the  whole  business  of  a  term,  he  cannot 
call  him  in  to  try  a  particular  cause,  in  order  to  obviate  the 
necessity  of  a  change  of  venue,  or  for  any  other  reason,  and 
if  he  does  so  the  proceedings  are  all  void.(c) 

Judicial  power  cannot  be  delegated ;  as  where  an  absent 
judge  telegraphed  the  clerk  to  discharge  the  jury  in  a  crimi- 
nal case,  and  the  clerk  did  so,  it  was  held  to  be  error  of  so 
fatal  a  character  that  the  prisoner  was  thereon  entitled  to  his 
discharge,  (rf) 

And  the  power  of  substitution  must  be  strictl}^  pursued; 
as  where  a  statute  authorizes  a  justice  of  the  peace  to  take 
jurisdiction  in  a  case  where,  on  the  part  of  the  municipal 
judge,  there  is  "absence,  sickness,  or  other  inability,"  the  fact 
that  the  judge  declines  to  act  does  not  confer  jurisdiction  on 
the  justice. (f)  And  so  where  a  clerk  of  the  district  court  is 
authorized  to  discharge  the  duties  of  the  county  judge,  when 
the  county  judge  and  prosecuting  attorney  are  both  unable 
to  act,  the  inability  and  the  cause  thereof  must  appear  of  rec- 
ord, and  if  this  is  not  so  an  appellate  court  v/ill  not  entertain 
an  appeal  from  the  judgment  rendered  by  the  clerk. (/) 

§  175.  Although  judges  act  under  grave  resj)onsibilities, 
yet  they  are  not  held  liable  in  pecuniary  damages  for  mere 
mistake,  void  of  malice  or  gross  negligence. (r/)  And  this  rule 
applies  as  well  to  inferior  as  to  superior  courts,  (//)  except  to 
the  former  in  a  less  degree,  since  it  is  held  that,  as  to  judges 
of  courts  of  record  of  superior  or  general  jurisdiction,  they 

(?)Gale,  Adin"r,  «.  Michie,  47  Mo.  cannot   act   as   district  judge  wlio 

32G.  has  not  practiced  law  in  tliat  state 

(d)State   V.  Jcflerson,    G6   N.    C.  for  two  years   next   preceding   hig 

309.  election ;     or,  if   he  has  practiced 

(e)Klaise  v.  State,  27  Wis.  402.  without  tlic  formal  admission  to  the 

(/jBiu-lington  University  «.  Ex-  bar  prescribed  by  the  constitution ; 

ecutors,  12  la.  442.  and  one  is  not  held  to  have  prac- 

(,9)Cope    V.    Ramsey,    2     Heisk.  ticed    law,    in    the    constitutional 

(Tenn.)  l'.)7.    Or  corruption  :  Gault  sense,  merely  because  he  has  acted 

«.  Wallis,  !j3  Ca.  675.  as  district  attorney.     State  ex  rel.  v. 

There  is  a  rule  in  Louisiana —  Marks,  30  La.  Au.  97. 

unique  but  judicious — intended,  ev-  (A)Londeoan   «.  Hammer,  30  la. 

idently,  to  guard  against   mistakes  509. 
from  inefficiency,    viz.:     that    one 


170  JUDGES. 

iuv  not  ]i:il)lo  in  civil  actions  for  their  judicial  acts,  even  if 
(hose  acts  are  in  excess  of  their  jurisdiction,  and  are  alleged 
to  have  been  corrupt  or  malicious.  There  is,  however,  a  dis- 
tinction between  such  acts  and  such  as  are  performed  in  the 
entire  absence  of  any  jurisdiction  over  the  subject-matter,  for 
these  latter  are  trespasses  ab  initio. (i) 

An  able  opinion  of  the  supreme  court  of  the  United  States, 
delivered  by  Justice  Field,  holds  this  language  in  regard  to  the 
subject  of  judicial  liability:  "It  is  a  general  principle,  of  the 
highest  importance  to  the  proper  administration  of  justice, 
that  a  judicial  officer  in  exercising  the  authority  vested  in  him 
shall  be  free  to  act  upon  his  own  convictions,  without  appre- 
hension of  personal  consequences  to  himself.  Liability  to 
answer  to  every  one  who  might  feel  himself  aggrieved  by  the 
action  of  the  judge  would  be  inconsistent  with  the  possession 
of  this  freedom,  and  would  destroy  that  independence  without 
wdiich  no  judiciary  can  be  either  respectable  or  useful.  As 
observed  by  a  distinguished  English  judge,  it  would  establish 
the  weakness  of  judicial  authority  in  a  degrading  responsibil- 
ity. The  principle,  therefore,  which  exempts  judges  of  courts 
of  superior  or  general  authority  from  liability  in  a  civil  action 
for  acts  done  by  them  in  the  exercise  of  their  judicial  func- 
tions, obtains  in  all  countries  where  there  is  any  well-ordered 
system  of  jurisprudence.  It  has  been  the  settled  doctrine  of  the 
English  courts  for  many  centuries,  and  has  never  been  denied, 
that  we  are  aware  of,  in  the  courts  of  this  country.  It  has,  as 
Chancellor  Kent  observes,  a  deep  root  in  the  common  law. 
Nor  can  this  exemption  of  the  judges  from  civil  liability  be 
atfected  liy  the  motives  with  which  their  judicial  acts  are 
performed.  The  purity  of  their  motives  cannot  in  this  way 
be  the  subject  of  judicial  inquiry.  This  was  adjudged  in  the 
case  of  Floyd  and  Barker,  reported  by  Coke,  in  1608,  where  it 
was  laid  down  that  the  judges  of  the  realm  could  not  be  drawn 
in  question  for  any  supposed  corruption,  impeaching  the  verity 
of  their  records,  except  before  the  king  himself,  and  it  was 
observed  that  if  they  were  required  to  answer  otherwise,  it 

(^■)  Bradley  v.  Fisher,  13  Wall.  347. 


JUDGES.  171 

would  tend  to  the  scandal  and  subversion  of  all  justice,  and 
those  who  are  the  most  sincere  would  not  be  free  from  con- 
tinual calumniations. 

"The  truth  of  this  latter  observation  is  manifest  to  all 
persons  having  much  experience  with  judicial  proceedings  in 
the  superior  courts.  Controversies  involving  not  merely  great 
pecuniary  interests  but  the  liberty  and  character  of  the  par- 
ties, and  consequently  exciting  the. deepest  feelings,  are  being 
-constantly  determined  in  those  courts,  in  which  there  is  great 
conflict  in  the  evidence,  and  great  doubt  as  to  the  law  which 
should  govern  their  decision.  It  is  this  class  of  cases  which 
imposes  upon  the  judge  the  severest  labor,  and  often  creates  in 
his  mind  a  painful  sense  of  responsibility.  Yet  it  is  in  pre- 
cisely this  class  of  cases  that  the  losing  party  feels  most 
keenly  the  decision  against  him,  and  most  readily  ae'cepts 
anj^thing  but  the  soundness  of  the  decision  in  explanation  of 
the  action  of  the  judge.  Just  in  proportion  to  the  strength  of 
his  convictions  of  the  correctness  of  his  own  view  of  the  case 
is  he  apt  to  complain  of  the  judgment  against  him,  and  from 
complaints  of  the  judgment  to  pass  to  the  ascription  of 
improper  motives  to  the  judge.  When  the  controversy  involves 
questions  affecting  large  amounts  of  property,  or  relates  to  a 
matter  of  general  public  concern,  or  touches  the  interests  of 
numerous  parties,  the  disappointment  occasioned  by  an 
adverse  decision  often  finds  vent  in  imputations  of  this  char- 
acter; and,  from  the  imperfections  of  human  nature,  this  is- 
hardly  a  subject  of  wonder.  If  civil  actions  could  be  main- 
tained in  such  cases  against  the  judge  because  the  losing 
party  should  see  fit  to  allege  in  his  complaint  that  the  acts  of 
the  judge  were  done  with  partiality,  or  maliciously,  or  cor- 
ruptly, the  protection  essential  to  judicial  independence  would 
be  entirely  swept  awa}'.  Few  persons  sufficiently  irritated  to 
institute  an  action  against  a  judge  for  his  judicial  acts  would 
hesitate  to  ascribe  any  character  to  the  acts  which  would  be 
essential  to  the  maintenance  of  the  action.  ***** 
A  distinction  must  be  here  observed  between  excess  of  juris- 
diction and  the  clear  absence  of  all  jurisdiction  over  the 
subject-matter.     Where  there  is  clearly  no  jurisdiction  over 


1 72  JUDGES. 

tlu>  subject-matter,  any  authority  exercised  is  a  usurped 
authority,  and  for  the  exercise  of  such  authority,  when  the 
want  of  jurisdiction  is  known  to  the  judge,  no  excuse  is 
l)ermissible."(,y) 

v^  17().  Nevertheless,  for  wilful  abuses  of  authority,  or  for 
malfeasance,  misfeasance,  or  non-feasance  in  office,  a  judge 
mav  be  removed  by  imiieachment,(A;)  or  otherwise,  as  by 
address  of  the  legislature;  but  never  by  mere  legislation. (Z) 
Or  if,  while  one  is  judge  he  is  convicted  of  felony,  this  not 
only  vacates  his  office,  but  no  pardon  can  restore  him.(»i) 

And,  in  Alabama,  it  has  been  held  that  one  who  occupied 
the  office  of  judge  of  the  circuit  court  vacated  the  office  and 
forfeited  all  his  rights  therein  by  entering  into  the  military 
service  of  the  rebellion,  and  there  was  no  need  of  any  judicial 
proceeding  to  determine  the  fact  of  forfeiture  and  vacancy. 
And  if  afterwards  he  was  elected  judge  under  the  confed- 
eracy he  did  not  thereby  become  even  judge  de  facto;  and 
when  the  legitimate  government  resumed  its  sway,  it  was 
under  no  obligation,  legal  or  moral,  to  pay  him  for  his  labors 
as  such  rebel  judge. (/«) 

(j)Bradley»;.  Fisher,  13  Wall.  347,  An.   491;    even   by  abolishing  the 

passiwt;  Davis  and  Clifford,  J  J.,  dis-  office   he  holds.      State  ex    rel.   v. 

senting.  Jiimel,  30  La.  An.  861 

(A;)Commonwealth  v.  Gamble,  62  (wjState  v.  Carson,  27  Ark.  469. 

Pa.  8t.  343.  (7i)Chisholm  «,  Coleman,  43  Ala. 

(i) State  ex  rel.  v.  Towne,  21  La.  216. 


CONTROL   OF   ATTORNEYS.  173 


CHAPTEE  XXn. 

CONTROL    OF    ATTORNEYS. 
f  177.  Removal  from  the  bar. 

§  177.  It  is  a  general  princij)le  that  the  jurisdiction  of  a 
court  includes  the  power  of  enforcing  rules  of  order,  and  of 
governing  its  officers,  including  attorneys.  And,  moreover,  a 
court  may  compel  obedience  upon  the  part  of  attorneys  by 
various  modes,  extending  to  their  exclusion  from  the  bar,  if 
necessary.  The  supreme  court  of  the  United  States  say  in 
regard  to  this  matter : 

"This  power  of  removal  from  the  bar  is  possessed  by  all 
courts  which  have  authority  to  admit  attorneys  to  practice. 
It  is  a  power  which  should  only  be  exercised  for  the  most 
weighty  reasons,  such  as  would  render  the  continuance  of  the 
attorney  in  practice  incompatible  with  a  proper  respect  of 
the  court  for  itself,  or  a  proper  regard  for  the  integrity  of  the 
profession.  And  except  where  matters  occurring  in  open 
court,  in  presence  of  the  judges,  constitute  the  grounds  of  its 
action,  the  j)ower  of  the  court  should  never  be  exercised  with- 
out notice  to  the  offending  party  of  the  grounds  of  complaint 
against  him,  and  affording  him  amjDle  opportunity  of  explana- 
tion and  defence.  This  is  a  rule  of  natural  justice,  and  is  as 
applicable  to  cases  where  a  proceeding  is  taken  to  reach  the 
right  of  an  attorney  to  practice  his  profession,  as  it  is  when 
the  proceeding  is  taken  to  reach  his  real  or  personal  property. 
And  even  where  the  matters  constituting  the  grounds  of  com- 
plaint have  occurred  in  open  court,  under  the  personal  obser- 
vation of  the  judges,  the  attorney  should  ordinarily  be  heard 
before  the  order  of  removal  is  made,  for  those  matters  may 
not  be  inconsistent  with  the  absence  of  improper  motives  on 


171:  CONTROL    OF   ATTOKXEYS. 

his  i);u-t,  or  may  be  susceptible  of  such  explanation  as  would 
mitigate  their  oft'ensive  character,  or  he  may  be  ready  to  make 
ill!  proper  apology  and  reparation.  Admission  as  an  attorney- 
is  not  obtained  without  years  of  labor  and  study.  The  office 
which  the  party  thus  acquires  is  one  of  value,  and  often  becomes 
the  source  of  great  honor  and  emolument  to  its  possessor.  To 
most  persons  who  enter  the  j)rofession  it  is  the  means  of  sup- 
port to  themselves  and  their  families.  To  deprive  one  of  an 
olhee  of  this  character  would  often  be  to  decree  poverty  to  him- 
self and  destitution  to  his  family.  A  removal  from  the  bar, 
therefore,  should  never  be  decreed  where  any  punishment  less 
severe,  such  as  reprimand,  temporary  suspension  or  fine,  would 
accomplish  the  end  desu'ed. 

"But,  on  the  other  hand,  the  obligation  which  attorneys 
impliedly  assume,  if  they  do  not  by  express  declaration  take 
it  upon  themselves  when  they  are  admitted  to  the  bar,  is  not 
merely  to  be  obedient  to  the  constitution  and  laws,  but  to 
maintain,  at  all  times,  the  respect  due  to  courts  of  justice 
and  judicial  officers.  This  obligation  is  not  discharged  by 
merely  observing  the  rules  of  courteous  demeanor  in  open 
t'ourt,  l)ut  it  includes  abstaining  out  of  court  from  all  insult- 
ing language  and  offensive  conduct  towards  the  judges  per- 
sonally for  their  judicial  acts.  'In  matters  collateral  to 
official  duty,'  said  Chief  Justice  Gibson,  in  the  case  of  Austin 
<ind  others,  'the  judge  is  on  a  level  with  the  members  of  the 
bar,  as  he  is  with  his  fellow  citizens ;  his  title  to  distinction 
and  respect  resting  on  no  other  foundation  than  his  virtues 
and  qualities  as  a  man.  But  it  is,  nevertheless,  evident  that 
professional  fidelity  may  be  violated  by  acts  which  fall  with- 
out the  lines  of  professional  functions,  and  which  may  have 
been  performed  out  of  the  pale  of  the  court.  tSuch  would  be 
the  consequences  of  beating  or  insulting  a  judge  in  the  street, 
for  a  judgment  in  court.  No  one  would  pretend  that  an  at- 
tempt to  control  the  deliberation  of  the  bench  by  the  appre- 
hension of  violence,  and  subject  the  judges  to  the  power  of 
those  who  are  or  ought  to  be  subordinate  to  them,  is  com- 
patible with  professional  duty,  or  the  judicial  iudei3endence 


CONTROL   OF   ATTORNEYS.  175 

SO  indispensable  to  the  administration  of  justice.  And  an 
enormity  of  this  sort  practiced  but  on  a  single  judge,  would 
be  an  offence  as  much  against  the  court,  which  is  bound  to 
protect  all  its  members,  as  if  it  had  been  repeated  upon  the 
person  of  each  of  them;  because  the  consequences  to  suit- 
ors and  the  jjublic  would  be  the  same,  and  whatever  may  be 
thought  in  such  a  case  of  the  power  to  punish  for  contempt, 
there  can  be  no  doubt  of  the  existence  of  a  power  to  strike 
the  offending  attorney  from  the  roll.' 

"The  order  of  removal  complained  of  in  this  case  recites 
that  the  plaintiff  threatened  the  presiding  justice  of  the 
criminal  court,  as  he  was  descending  from  the  bench,  with 
personal  chastisement  for  alleged  conduct  of  the  judge  dur- 
ing the  progress  of  a  criminal  trial  then  pending.  The  mat- 
ters thus  recited  are  stated  as  the  grounds  for  the  exercise  of 
the  power  possessed  by  the  court  to  strike  the  name  of  the 
plaintiff  from  the  roll  of  attorneys  practicing  therein.  It  is 
not  necessary  for  us  to  determine,  in  this  case,  whether, 
iinder  any  circumstances,  the  verity  of  this  record  can  be  im- 
peached. It  is  sufficient  to  observe  that  it  cannot  be 
impeached  in  this  action,  or  in  any  civil  action  against  the 
defendant;  and,  if  the  matters  recited  are  taken  as  true, 
there  was  ample  ground  for  the  action  of  the  court.  A  greater 
indignity  could  hardly  be  offered  to  a  judge  than  to  threaten 
him  with  personal  chastisement  for  his  conduct  on  the  trial 
of  a  cause.  A  judge  who  should  pass  over  in  silence  an 
offence  of  such  gravity  would  soon  find  himself  a  subject  of 
pity  rather  than  respect. 

"The  criminal  court  of  the  district  erred  in  not  citing  the 
plaintiff  before  making  the  order  striking  his  name  from  the 
roll  of  its  attorneys,  to  show  cause  why  such  order  should  not 
be  made  for  the  offensive  language  and  conduct  stated,  and 
affording  him  opportunity  for  explanation,  or  defence,  or 
apology.  But  this  erroneous  manner  in  which  its  jurisdic- 
tion was  exercised,  however  it  may  have  affected  the  validity 
of  the  act,  did  not  make  the  act  any  less  a  judicial  act;  nor 
did  it  render  the  defendant  Liable  to  answer  in  damages  for 


I7t)  CONTROL    OF    ATTORNEYS. 

it  at  the  suit  of  the  phiintitt',  as  though  the  court  had  pro- 
coeiled  without  having  any  jurisdiction  over  its  attorneys. "(a) 
But  the  control  and  regulation  of  attorneys  in  their  conduct 
are  not  confined  to  courts  having  jDOwer  to  dishar  offenders. 
Even  the  humhlest  court  may  amply  protect  itself  against  in- 
sult hy  fines;  and,  usually,  if  need  be,  imprisonment.  At- 
torneys are  officers  of  all  courts  in  which  they  practice,  and 
hence,  whenever  they  enter  the  precincts  of  a  court-room,  they 
pass  under  a  just  and  enforceable  authority.  See  Contempts 
and  Newspaper  Contempts,  infra. 

((7)Sccomb's  Case,   19  How.  9;    Garland's  Case,  4  Wall.  379 ;  Randall 
dl  Brigham,  7  Wall.  523. 


CONTEMPTS.  177 


CHAPTEE  XXIII. 

CONTEMPTS. 

5  178.  Power  to  punish  for  contempts  essential. 

179.  Nature  of  the  power. 

180.  Nature  of  proceedings  in  contempt. 

181.  Contempt  of  witness. 

182.  Bringing  a  fictitious  suit. 

183.  Quarreling  or  lighting. 
1S4.  Extent  of  power  to  punish. 

185.  Attempt  to  obtain  opinion  wlien  there  is  no  real  controversy. 

186.  Client  not  answerable  for  contempt  of  attorney. 

187.  Contempt  committed  by  a  court. 

188.  Disobedience  of  orders  made  out  of  court. 
ls9.  Contempts  by  not  paying  money. 

190.  Violation  of  injunctions. 

191.  Insolent  language  of  an  attorne^y  to  J.  P. 

192.  Proceedings  not  retroactive. 

193.  When  citation  to  show  cause  must  issue. 

194.  Clearing  contempt. 

195.  Remitting  sentence  by  pardon. 

196.  Denial  of  right  to  litigate  to  one  in  contempt. 

§  178.  It  is  apparent,  even  at  a  casual  thought,  how  es- 
sential it  is  to  the  administration  of  justice  that  all  courts  of 
justice  should  have  the  power,  in  a  summary  manner,  to 
guard  their  inherent  dignity  from  injurious  aspersions,  and 
to  enforce  obedience  to  their  orders.  Contempts  may  relate 
either  to  matters  in  the  cause,  such  as  disobedience  to  pro- 
cess, rules,  orders,  etc.,  or  to  matters  without,  such  as  mis- 
conduct tending  to  obstruct  the  proceedings  of  courts  or  mar 
their  efficiency. 

We  shall  consider  these  two  divisions  in  the  order  named : 

First,  then,  contempts  in  the  cause.     However,  before  setting 

out,  we  must  observe  that  not  all  failures   in  the   cause  to 

comply  with  the  requisitions  of  the  court  will  subject  one  to 

v.l— 12 


178 


CONTEMPTS. 


proceedings  for  contempt ;  as,  for  example,  the  mere  non-pay- 
nuMit  of  a  judgment,  and  the  like,  will  not;  although,  as  we 
shall  see,  a  non-compliance  with  some  orders  for  the  pay- 
ment of  money  will. 

5J  17!>.  It  is  conceded  by  all  that  the  right  to  protect  itself 
a-ainst  contempt,  in  some  way,  belongs  to  every  court.  But 
there  is  a  variance  in  the  authorities  as  to  the  manner  and 
degree,  some  holding  it  to  be  inherent,  and  not  subject  to 
review,  even  when  exercised  by  lower  courts  in  the  absence  of 
statutory  authority,  except  in  the  way  of  subjecting  a  magis- 
trate to  indictment  or  impeachment,  if  he  acts  maliciously  or 
oppressively;  (a)  others  holding  that  none  but  courts  of  record 
can  punish  summarily  for  contempt,  the  inferior  courts  hav- 
ing only  a  right  to  procure  an  indictment  against  the  of- 
fender.(6)  The  reason  of  the  case  seems  to  be  decidedly  with 
the  former,  when  we  consider  the  necessity  of  a  prompt, 
decisive,  immediate  suppression  of  an  existing  obstruction 
to  justice  in  pending  proceedings.  And  the  remark  of  the 
New  Jersey  court  seems  painfully  inadequate,  that  "to  compel 
sureties,  for  the  peace  or  bail,  to  answer  an  indictment,  or  to 
commit  in  default  of  either,  besides  the  other  remedies  stated, 
are  powers  sufficient  to  protect  these  inferior  jurisdictions 
from  obstruction ;  and  he  who  disturbs  them,  although  they 
may  be  inferior  in  a  legal  sense,  should  understand,  by  the 
penalties  of  a  conviction  on  an  indictment,  that  the}^  per- 
form a  very  important  and  necessary  part  in  the  administra- 
tion of  the  laws,  both  general  and  local,  and  will  receive  the  full 
protection  that  punishment  for  misdemeanor  can  secure."  It 
is  certainly  evident  that  remote  and  uncertain  punishment  has 
infinitely  less  restraining  power  than  immediate  and  inevitable 
consequences. 

Yet  there  is  a  well-founded  distinction  between  superior  and 
inferior  courts,  in  this,  that  the  latter  cannot  punish,  as  for  a 
criminal  contempt,  except  for  interruptions  to  business  during 

(a)Clark  v.  People,  Breese  (111.)  gan,  33  N.  J.  L.;  Bradley  v.  Fisher, 
340.  13  Wall.  354,  350. 

{b)ln  the  matter  of  Peter  Kerri- 


CONTEMPTS. 


179 


judicial  proceedings,    and  cannot  enforce  civil   remedies  by 
proceedings  as  for  contempt,  (c)* 

The  supreme  court  of  Mississippi  well  remarks,  on  the 
power  to  fine  and  imprison  for  contempt,  that  "from  the 
earliest  history  of  jurisprudence  it  has  been  regarded  as  a 
necessary  incident  and  attribute  of  a  court,  without  which  it 
could  no  more  exist  than  without  a  judge.  It  is  a  power  in- 
herent in  all  courts  of  record,  and  co-existing  with  them  by 
the  wise  provisions  of  the  common  law,  A  court  without  the 
power  effectually  to  protect  itself  against  the  assaults  of  the 
lawless,  or  to  enforce  its  orders,  judgments  or  decrees  against 
the  recusant  parties  before  it,  would  be  a  disgrace  to  the  leg- 
islation and  a  stigma  upon  the  age  which  invented  it.     In 


(c)In  the  matter  of  Watson,  3 
Lans.  {N.  Y.)  414. 

*A  court  which  has  no  power  to 
disbar  an  attorney  may  yet  report 
to  the  licensing  court  disorderly 
conduct  on  the  part  of  an  attorney-, 
whose  duty  it  is  to  look  into  the 
report,  Brewster's  Case,  12  Hun. 
110. 

In  New  York  it  has  lately  been 
held  that  the  power  of  a  justice  of 
the  peace  to  punish  for  contempt  is 
wholly  statutory.  Rutherford  v. 
Holmes,  66  N.  Y.  368;  Andrews 
and  Miller,  JJ. ,  dissenting.  And 
also  as  to  a  surrogate's  court.  Wat- 
son V.  Nelson,  69  N.  Y.  536.  In 
Connecticut  it  is  held  that  the 
statute  only  regulates  the  power, 
and  does  not  confer  it — the  power 
being  inherent  in  all  courts.  Mid- 
dlebrook  v.  State,  43  Conn.  257.  So 
that  a  decision  thereon,  where  the 
proceeding  is  according  to  the 
common  law  practice,  is  not  re- 
viewable by  the  supreme  court, 
because  at  common  law  the  power 
of  review  did  not  exist,  and  this 
can  only  be  conferred  by  statute. 
Wilson  V.  Territory,  1  Wy.  114. 
Tyler  «.  Hamasley,  44  Conn.  393, 
In   Alabama    it  is   held  not   only 


absolute,  but  the  party  does  not 
even  need  to  be  allowed  an  oppor- 
tunity of  defense,  the  proceeding 
not  being  regarded  as  a  criminal 
trial.  E.V  parte  Hamilton,  ,51  Ala. 
66.  But,  in  Texas,  a  party  is  enti- 
tled to  a  rule  nisi  when  disobedi- 
ence to  process  is  charged  against 
him,  which  doubtless  is,  in  eHect, 
the  general  rule  in  such  cases.  Ex 
parte  Kilgore,  3  Tex.  Ct.  of  Ap. 
247.  And  especially  is  an  officer 
entitled  to  a  rule  when  proceeded 
against  for  not  executing  process. 
Wheeler  v.  Harrison,  57  Ga.  24; 
Wheelers.  Thomas,  Id.  161.  Where 
a  contempt  is  committed  in  the 
presence  of  the  court,  the  court 
has  immediate  jurisdiction  of  the 
offender,  and,  although  he  leaves 
the  court  room  and  absconds,  lie 
may  be  sentenced,  in  his  absence, 
without  the  issuing  of  process  for 
his  arrest.  Middlebrook  v.  State, 
43  Conn.  257.  See,  also,  People  ex 
rel.  V.  Nevins,  1  Hill,  1.54.  But,  if 
one  is  discharged  on  the  ground 
that  the  punishment  imposed  was 
in  part  unknown  to  the  law,  he 
cannot  be  re-sentenced  for  the 
same  contempt.  Snyder  v.  Van 
Ingeu,  9  Hun.  569. 


IgQ  CONTEMPTS. 

ihis  country  all  courts  derive  their  authority  from  the  peo- 
l)k\  aiul  hold  it  in  trust  for  their  security  and  benefit.  In 
this  state  all  judges  are  elected  by  the  people,  and  hold  their 
authority  in  a  double  sense  directly  from  them;  the  power 
they  exercise  is  but  the  authority  of  the  people  themselves, 
exercised  through  courts  as  their  agents.  It  is  the  authority 
and  laws  emanating  from  the  people  which  the  judges  sit  to 
exercise  and  enforce.  Contempts  against  these  courts,  in  the 
administration  of  their  laws,  are  insults  offered  to  the  author- 
ity of  the  people  themselves,  and  not  to  the  humble  agents 
of  the  law  whom  they  employ  in  the  conduct  of  their  gov- 
ernment. The  power  to  compel  the  lawless  offender  against 
decency  and  propriety  to  respect  the  laws  of  his  country  and 
submit  to  their  authority  (a  duty  to  which  the  good  citizen 
yields  hearty  obedience  without  compulsion)  must  exist,  or 
courts  and  laws  operate  at  last  as  a  restraint  upon  the 
upright,  who  need  no  restraint,  and  a  license  to  the  otfenders 
whom  they  are  made  to  subdue.  "(cZ) 

It  seems  reasonable  that  each  court  should  be  its  own  judge 
as  to  the  contempt,  and  perhaps,  usually,  its  decision  is  not 
reviewable. (e)     But  a  statute  may,  of  course,  make  it  subject 

(d)Watson  «.  Williiims,  36  Miss.  ducting  proceedings  in  a  cause,  it 

341.  is  the  imperative  duty  of  a  justice 

Wherever  a  party  relies  on  the  of  the  peace  to  repress  all  disorderly 
disqualification,  by  interest,  of  a  behavior  of  p-irties,  counsel,  or  by- 
magistrate,  to  nullify  contempt  pro-  standers.  Onderdonk  v.  Kanlett, 
ceedings,  it  is  his  place  to  establish  3  Hill,  329.  Although  the  mere 
Buch  disqualification,  and  not  to  neglect  to  comply  witli  an  order, 
require  the  magistrate  to  aver  in  such  as  an  order  to  produce  a  paper 
the  mittimus  that  he  is  not  inter-  in  evidence,  will  not  justify  him  in 
ested  in  the  cause.  Call  v.  Pilce,  punishing  th^  neglect  as  a  con- 
68  Me.  219.  tempt.     People  ex  rel.  v.  Benjamin, 

In  New  York  it  has  been  held  9  How.  Pr.  419.     As  to  the  power 

that  a  justice  of   the  peace  may  of  a  public  officer,  as  a  comrais- 

proceed,  by  warrant,  to  cause  the  sioner,  or  of  a  committee,  to  commit 

arrest  of  an  offender  for  contempt-  for  a  contempt,  it  must  not  be  im- 

uous  words  spoken  to  him  by  the  plied,  but  must  be  clearly  conferred 

party,    after    judgment    rendered  by  law.     Noyes  v.  B^-xbee,  45  Conn, 

against   the  party,  and  while  the  382.      (See  p.  179,  note.) 
justice  is  not  actually  holding  court.  (<')Statc    v.    Thurmond,   37   Tex. 

Kichmondv.  Dayton,  10  Johns.  395.  341;  Clark  v.  People,  Breese  (111.) 

And,  more  especially,  while   con-  340. 


CONTEMPTS.  181 

to  appeal.  (/)  In  the  United  States  courts  contempts  are 
exclusively  cognizable  by  the  courts  where  they  arise,  and 
cannot  be  appealed,  (^f)  In  Kentucky,  while  the  question  of 
contempt  or  no  contempt  is  not  reviewable,  the  sentence  in- 
flicted is  so;  as,  for  example,  striking  an  attorney  from  the 
rolls.  (/<)  And  in  Maine  the  question  of  jurisdiction  may  be 
examined  ;(t)  as,  also,  in  California. (j)  In  Iowa,  while  not 
coming  under  the  power  of  criminal  aj^peals,  yet  matters  of 
contempt  are  reviewable  on  certiorari.  As  to  such  appeals 
we  will  treat  fully  in  the  second  volume  of  the  present  work.* 
§  180.  As  to  the  nature  of  proceedings  in  contempt  it  is 
held  that  these  are  of  a  quasi  criminal  character,  and  conse- 
quently the  state  is  the  real  prosecutor,  and  where  the  pro- 
ceeding is  against  a  party  in  a  civil  cause  for  misconduct  or 
disobedience  therein  it  should  not  be  entitled  as  of  such 
action; (A,)  and  still  less  should  a  fine  imposed  be  allowed  to 
the  ojjposite  party.  (I)  Imprisonment,  too,  must  be  for  a  certain 
and  definite  time,  or  must  expire  on  the  performance  of  a 
condition,  (w)  So  that  the  remarks  of  Chancellor  Pirtle  are 
worthy  of  close  attention :   "Is  it  necessary  that  the  courts  of 

(/)Whittera  v.  State,  36  Ind.  197.  not    properly   review    a   contempt 

((7)New  Orleans  t\  Steamship  Co.  committed  in  another  court.    Shut- 

20  Wall.  387.  luck  ».  State,  51  Miss.  50;  Phillips 

(/i)Turner  ».    Commonwealth,    2  v.  Welch,  12  Nev.   159.     Yet,  even 

Met.  619.  if  a  court  commissioner  lias  author- 

(i) Railroad  v.    Railroad,   49   Me.  ity  to    punish    for    contempt,    the 

401.  '  court   may  do  so,   if    he  does  not 

(.y)Batchelder   «.  Moore,  42   Cal.  exercise  such  authority.    Niellman- 

414.  kamp  v.  Ulhnan,  47  Wis.  168.    And  . 

*A.  recent  case  in  Missouri   has  of  course  there  may  he  an  appeal 

decided  that  where  a  person  refused  in  some  cases,  in  which,  however, 

to  serve  as  a  juror,  on  the  ground  the  point  of  inquiry  relates  to  the 

that  he  was  exempt  by  statute,  and  jurisdiction  of   the   inferior  court, 

was  thereupon  committed  for  con-  and  the  regularity  of  the  exercise 

tempt,  the  legality  of  the  committal  thereof  on  the  face  of  the  proceed- 

could  not  be  incpiired  of  by  habeas  ings.     Phillii^s  «.  W^elch,  supra. 
cf/7H<«  proceedings.    Exparte  Good-  (/,:)IIaight  ».  Lucia,  36  Wis.  360. 

win,  67  Mo.  637.     And  so  in  Mich-  (/)ln  the  matter  of  Rhodes,  65  N. 

igan,  where  one   is   committed  for  C.   519,  and  ]\Iorris   v.    While. .cad, 

refusing  to  pay  alimony.     Bissell's  Id.  637. 

Case,  40  Mich.  63.     And  this  rests  (»i.)W.hittem  «.  State,  3(;  Ind.  216; 

on  the  ground  that  one  court  can-  Leach's  Case,  51  Vt.  630. 


;lg2  CONTEMPTS. 

this  country  should  have  power  to  commit  until  further  order 
of  the  court?  I  cannot  find  it.  I  can  see  no  call  for  it.  I 
can  see  danger  in  it,  and  the  law  should  not  make  danger 
where  there  is  no  necessity.  A.  freeman  should  never,  by  the 
laws  of  freemen,  be  placed  in  such  dreary  uncertainty  of 
imprisonment  as  that  when  he  inquires  of  'the  law  of  the 
land'  it  cannot  tell  him  when  it  shall  end.  No  absolute 
power  lives  in  this  country.  It  cannot  exist  in  a  republic. 
Suppose  the  court  should  adjourn  without  having  made  any 
further  order,  the  consideration  of  the  case  is  cut  off  at  once, 
and  entirely,  until  the  next  term.  So  he  must  be  left  without 
any  authority  of  the  judiciary  even  to  mediate  his  case.  And 
a  person  committed  for  contempt  cannot  be  bailed."  Quoted 
3(5  Ind.  216. 

In  the  United  States  courts  it  is  treated  as  a  criminal  pro- 
ceeding, in  the  name  of  the  United  States;  and  in  matters 
of  mere  disobedience  the  party  is  heard  in  his  own  behalf,  («) 
while  in  direct  contempt,  by  misbehavior  in  the  face  of  the 
court,  sentence  is  given  on  view  only.(o) 

Eine  and  imprisonment  are  the  usual  modes  of  punish- 
ment. But  the  court  is  not  always  confined  to  these,  but  can 
refuse  to  allow  one  in  contempt  any  aggressive  proceed- 
ings against  his  adversary  in  a  cause  pending,  although  it 
cannot  stay  him  in  his  proceedings,  by  motion  or  appeal, 
where  appeal  is  allowed,  when  his  object  is  to  rid  himself  of 
the  alleged  contempt,  or  show  that  the  order  he  disobeyed  was 
in  itself  erroneous. (jj) 

§  181.  A  witness  is  not  only  liable  in  contempt  for  inso- 
lence and  contumacy  in  open  court,  but  also  before  the  grand 
jury  in  refusing  to  answer  proper  questions,  and  threatening 
some  of  the  grand  jurors.  And  he  may  not  only  be  fined, 
but  also  required  to  give  security  for  his  good  behavior  for  a 
jea.Y.{q)  And,  universally,  wilful  disobedience  to  a  subpoena 
is  a  contempt  in  superior  courts.     A  justice  of  the  peace, 

(n)F.inshawe    v.    Tracy,    4    Bis.  (//)Brinklev  v.  Brinklev,  47  X.  Y. 

49K.  4„ 

(</)WliiUem    V.    State,     3G    Ind.  i7)United     States    v.     Caton,     1 

21"-  Crauch,  C.  C.  150. 


I 


CONTEMPTS.  182 

however,  in  New  York,  cannot  commit  for  a  contempt  in 
refusing  to  answer  a  question,  until  the  j)arty  desiring  his 
testimony  files  affidavit  that  the  testimony  desired  is  material 
in  the  cause. (r) 

But  while  the  refusal  of  a  witness  to  answer  a  proper  ques- 
tion is  a  contempt,  no  matter  how  resj)ectful  and  deferential 
the  refusal  may  be,  yet,  if  the  inquiry  is  an  improper  one  as 
to  the  subject,  it  is  not  a  contempt,  and  one  imprisoned  there- 
under will  be  released  on  habeas  corpus. (s) 

It  is  held  a  contempt  for  one,  in  an  examination  before  a 
referee,  to  refuse  to  allow  a  witness,  while  testifying,  to  exam- 
ine account  books,  to  enable  the  adverse  party  to  question 
him  thereon;  although  it  is  doubted  whether  a  court  can  order 
the  books  of  a  party  to  be  left  with  a  referee  for  the  purpose 
of  accounting ;  and,  certain  it  is,  that  where  such  books  are  not 
left  when  there  is  no  such  order  of  the  court,  this  is  no  con- 
tempt. (^) 

It  has  even  been  held  that  for  an  attorney  to  refuse  to  pro- 
duce papers  in  his  j)ossession,  on  the  ground  that  it  would  be 
a  breach  of  his  privilege  as  an  attorney,  is  a  contempt,  since 
it  belongs  not  to  himself,  but  to  the  court,  to  determine  the 
question  of  his  privilege. (?t)  But  if  papers  are  not  under 
control,  it  is  a  sufficient  excuse  if  a  witness  does  what  he  can 
to  comply,  (i:)  And  where  the  court  allows  a  party  to  examine 
part  of  his  adversary's  books,  and  he  breaks  open  other  parts 
sealed  up,  he  is  guilty  of  contempt. (?r) 

(;•) Rutherford  v.  Holmes,  5  llun.  («)Headt  «.  Wetmore,  2  Rob.  (N. 

(N.  Y.)  317.  Y.)  (i91. 

(,s)Holman  v.  Mayor,  34  Tex.  669.  (w)Dias  v.  Merle,  2  Paige  (N.  Y.) 

Where  a  witness  refuses  to  an-  494. 

swer  several  questions  addressed  to  There   is  a  distinction  between 

the  same   point,  the   court   is   not  civil  and  criminal  contempts,  and 

justified  in  punishing  each  separate  also  between  actual  and  constructive 

refusal  to  answer  as  a  separate  con-  contempts.     The  same  act  cannot 

tempt.     Only  one  sentence  can  be  l)e  the  basis  of  an  aAvard  of  indem- 

imposed.      Maxwell    v.    Rives,    11  nity,  and,  at  the  same  time,  be  pun- 

Nev.  214.  ished     as    a    criminal     contempt. 

(0  Ludlow  V.  Knox,  4  Abb.  App.  Pierce's   Case,   44   Wis.   412.     The 

Dec   326.  distinction  is  that,  in  a  civil  con- 

(wjMitchcll's  Case,  12   Abb.    Pr.  tempt,  the  offense  consists  in  n/ws- 

249.  iiif/  to  obey  some  order  made  for  the 


ISi 


CONTEMPTS. 


^  182.  It  has  been  held  punishable  as  a  contempt  to  bring 
;i  lic-titious  suit  in  the  name  of  another  without  the  privity  or 


benelit  of  the  opijosite  party;  but 
if  tlie  offence  is  eiirected  against 
tlic  dignity  of  the  court,  or  if  it 
consists  of  doing  something  posi- 
tively to  the  injury  of  the  opposite 
party,  it  is  criminal  in  its  nature. 
Phillips  V.  Welch,  11  Nev.  187. 

An  executor  maybe  compelled  to 
pay  stipends  by  contempt  proceed- 
ings, provided  he  has  opportunity 
to  be  heiU-d  thereon,  but  not  other- 
wise. Leach's  Case,  51  Vt.  6.30. 
And,  in  all  cases,  the  violation 
must  be  clear.  If  an.  order  diso- 
he\-ed  is  capable  of  a  construction 
which  of  itself  will  obviate  the 
contempt,  this  construction  must 
be  given  it.  Weeks  v.  Smith,  3 
Abb.  Pr.  211.  And,  as  to  orders 
commanding  the  payment  of  money, 
the  failure  must  be  icilful  in  order 
to  constitute  a  punishable  default. 
Dinet  v.  People  ex  rel.  73  111.  183; 
:Myers  v.  Trimble,  3  E.  D.  Smith, 
607 ;  Kussell  v.  Russell,  69  Me.  336, 
(relating  to  the  payment  of  ali- 
mony.) And  it  has  heen  held  that 
a  demand  for  performance  under 
an  order  for  the  payment  of  money, 
or  the  delivery  of  property,  even 
to  a  receiver,  is  needful  to  justify 
proceedings  for  contempt.  McComb 
V.  Weaver,  11  Hun.  271. 

The  enforcement  of  civil  reme- 
dies by  contempt  proceedings  is  to 
be  regarded  as  an  extreme  resort, 
not  to  be  allowed  where  there  is 
any  other  adequate  remedy.  Haines 
p.  Haines,  3-5  Mich.  138.  And  so  if 
there  is  an  order  requiring  the  de- 
livery of  a  deed,  there  is  no  action- 
able contempt  until  after  the  party 
entitled  to  the  deed  has  prepared  one 
and  presented  it  ^or  examination, 
and  the  execution  is  refused.  Barry 
c.  .Junes,  3.V  Mich.  Is9.     But  a  toil- 


ful evasion  of  the  service  of  a  knowa 
order  constitutes  a  contempt,  (Con- 
over  V.  Wood,  5  Abb.  Pr.  84;)  and, 
if  service  is  made  on  a  solicitor, 
the  client,  knowing  such  service, 
must  obey  it,  or  he  will  be  in  con- 
tempt as  fully  as  if  the  service 
were  personal.  People  ex  rel.  v. 
Brower,  4  Paige,  405. 

If  one  disposes  of  property  which 
he  knows  is  the  subject  of  an  order 
commanding  it  to  be  delivered  to  a 
receiver,  he  is  in  contempt.  Hull 
«.  Thomas,  3  Edw.  236.  A  trustee 
can  only  be  adjudged  in  contempt, 
however, for  not  paying  over  money, 
when  the  money  is  actually  in  his 
hands,  or,  having  been  in  his  hands, 
has  been  paid  out  by  him  under 
such  circumstances  as  involved  a 
breach  of  trust.  Williams  v.  Dwi- 
ndle, 51  Cal.  442.  But,  of  course, 
orders  can  only  bind  parties  in  the 
cause.  Watson  v.  Fuller,  9  How. 
Pr.  425.  But,  as  to  these,  the  power 
to  punish  for  contempt  extends 
even  to  supplementary  proceed- 
ings. Smcthust's  Case,  2  Saudf. 
724.  And  an  order  binding  on  a 
a  corporate  body — even  upon  a 
common  council — is  binding  upon 
all  the  individuals  several!}'  who 
compose  the  corporation,  and  all 
who  act  in  its  behalf,  and  to  whom 
knowledge  of  the  order  comes. 
People  V.  Sturtevant,  5  Seld.  263. 

It  is  held,  usually,  (Iowa  ex- 
cepted,) that  it  is  a  contempt  for 
one  having  a  claim  to  bring  an  ac- 
tion against  a  receiver,  without 
leave  of  the  court  appointing  the 
receiver.  Richards  v.  People,  81 
111.  5ol.  The  reason  is,  that  the 
property  is  then  considered  in  the 
custody  of  the  court.  Xoe  v.  Gib- 
son, 7  Paige,  513.     And  the  pjss.s- 


CONTEMPTS. 


185 


consent  of  the  nominal  plaintiff;  the  judgment,  however,  only 
extending  to  the  payment  of  the  costs. (,r) 

§  183.  It  is  contempt  to  call  another  a  liar  openly  in  the 
presence  of  the  court  while  in  session,  and  in  hearing  of  the 
officers  of  the  court;  and  an  assault  and  battery  committed 
in  a  hall  of  entrance,  within  hearing  of  the  court,  is  so  like- 
wise. (^) 

§   184.  The  power  of  the  courts  to  punish  for  contempt  is 


sion  of  the  receiver  must  not  be 
disturbed,  although,  if  the  property 
be  real  estate,  it  may  be  sold  hy  a 
sheriff  on  execution  ;  but  tlie  pur- 
chaser must  have  the  permission 
of  the  appointing  court  to  talte  the 
possession.  Albany  City  Bank  v. 
Schermeiliorn,  9  Paige,  373.  And 
the  rule  is  tlie  same  as  to  tlie  com- 
mittee, conservator  or  guardian  of 
a  lunatic,  idiot  or  drvmkard.  L'Am- 
oreaux  v.  Crosby,  2  Paige,  422; 
Heller's  Case,  3  Paige,  190;  Hep- 
per's  Case,  5  Paige,  489 ;  Lynch's 
Case,  5  Paige,  120. 

In  proceedings  for  contempt  it 
cannot  be  shown  that  the  order  dis- 
obeyed was  erroneous,  provided  the 
court  had  jurisdiction  <d"  the  cause. 
People  ex  rel.  v.  Sturtevant,  (j  Seld. 
263;  Higbie  v.  Edgarton,  3  Paige, 
253;  Smith  ».  Iteno,  G  How.  Pr. 
126 ;  Insurance  Co.  v.  Hicks,  7  Abb. 
Pr.  204.  Even  the  advice  of  an 
attorne}'  that  an  order  is  illegal  will 
furnish  no  excuse.  Capet  v.  Parker, 
3  Sanf.  662. 

As  to  criininnl  contempts,  what- 
ever tends  to  obstruct  the  adminis- 
tration of  justice,  diiectl}',  is  a 
punishable  oli'encc,  even  if  it  con- 
sists of  abuse  of  a  judge  out  of 
court.  Thus,  wliere  an  attorney 
wrote  a  letter  to  a  judge,  stating  in 
substance,  "The  ruling  you  have 
made  is  directly  contrary  to  every 
principle  of  law,  and  cveiybody 
knows  it,  1  believe;"  and   "It   is 


my  desire  that  no  .such  decision 
shall  stand  unreversed  in  any  court 
I  piactice  in,"  it  w^as  held  to  be  a 
flagrant  contemiJt.  Pryor's  Case, 
18  Kan.  72. 

Where  a  contempt  is  committed 
in  one  jurli-diction,  an  anest  there- 
for cannot  be  made  in  another, 
even  in  the  matter  of  a  violation  of 
the  order  of  a  district  court  of  the 
United  States  in  a  bankruptcy  case. 
Allen's  Case,  13  Blatcli.  C.  C.  272. 

In  constructive  contempts  juris- 
diction is  sometimes  made  to  de- 
pend on  the  filing  of  an  affidavit. 
Wilson  V.  Territory,  1  Wy.  155. 

And  imprisoning  for  a  contempt 
in  disobeying  an  order  of  court  is 
not  a  violation  of  a  constitutional 
provision  forbidding  imprisonment 
for  debt,  or  of  one  icquiring  a 
trial  hj-  jury  in  criminal  cases, 
(State  (\r  rel.  v.  Beclit,  23  Minn. 
411;). unless  in  case  of  an  order 
requiring  the  payment  of  money 
merely.  Insuiance  Case,  17  Bank 
Keg.  :J(;s. 

A  commitment  is  not  avoided  by 
including  some  improper  items  in  a 
fine.  People  ex  rel.  v.  Jacobs,  66 
N.  Y.  9. 

Erx  adj ndicaUt.  applies  to  defences 
in  contempt  cases.  Thweatt  v. 
Kiddoo,  5S  Ga.  300. 

(.fjBiitterworlhw.  Slagg,  2.Johns. 
Cas.  2;)1. 

(,z/) United  States  v.  Emerson,  4 
Cranch,  C.  C.  Ib9. 


-1j;;(5  contempts, 

not  con  fined  to  officers  thereof,  parties  and  witnessses,  but 
extends  to  strangers,  who  are  punishable  for  attempting  to 
make  any  arrangement  with  a  juror  to  signal  the  state  of 
jitVairs  in  a  jury  room  while  the  jury  are  considering  their  ver- 
dict ;  it  being  the  policy  of  the  law  to  secure  complete  seclu- 
sio]i.  And  a  court  remarked,  in  a  case  of  the  kind,  that  there 
IS  "'nothing  which  calls  for  keener  vigilance  on  the  part  of 
judges  than  everything  which  has  a  tendency  to  expose  jurors 
to  the  arts  of  the  friends  or  followers  of  litigants. "(^ 

§  1S5.  "Any  attempt  by  a  mere  colorable  dispute  to  obtain 
the  opinion  of  the  court  upon  a  question  of  law  which  a  party 
desires  to  know  for  his  own  interests,  or  his  own  pnrposes,^ 
when  there  is  no  real  and  substantial  controversy  between 
those  who  appear  as  adverse  parties  to  the  suit,  is  an 
abuse  which  courts  of  justice  have  always  reprehended,  and 
treated  as  a  punishable  contempt  of  court."  And  it  does  not 
matter  whether  the  suit  is  collusively  brought,  or  one  party 
buys  out  the  interest  of  the  other,  pendente  lite,  or  even  on 
appeal,  (a) 

§  186.  In  no  case,  however,  can  a  client  beheld  answera- 
ble for  the  contempt  of  an  attorney,  involved  in  an  act  of 
which  the  client  knew  nothing.  The  supreme  court  of  New 
York  say  concerning  this,  by  Jones,  J. :  "I  do  not  perceive  on 
what  principle  the  client  can  be  punished  as  for  a  contempt 
for  an  act  done  by  his  attorney,  without  his  direction,  knowl- 
edge, privity  or  procurement.  The  proceedings  to  punish  for 
a  contempt  are,  in  their  nature,  quasi  criminal.  The  party 
adjudged  guilty  is  to  be  punished  by  fine  or  imprisonment, 
or  both.  By  his  act  of  contempt  he  subjects  himself  to  a  lia- 
bility to  punishment  in  either  of  those  modes.  If,  then,  the 
client  is  guilty  of  a  contempt  for  an  act  done  by  his  attorney 
without  his  knowledge,  he  becomes  liable  to  be  punished  by  a 
fine  or  imprisonment,  or  both,  for  an  act  done  by  another, 
without  his  participation.     Thus  he  may  be  imprisoned  sim- 

(2)State    t).    Doty,    32  N.    J.    L.  or  firm  name.     Devlin  v.  Devlin,  12 

4f'«-  Hun.  212. 

And  so  an  evasion  of  an  injunc-  («)Clevelancl    v.    Chamberlain,   1 

tion  against  using  a  particular  sign  Black  (U.  S.)  42(3. 


CONTEMPTS.  187 

ply  as  a  punishment  for  the  illegal  act  of  another.  It  is  no 
answer  to  say  that  the  court  has  a  discretion  to  impose  on  him 
simply  a  fine  sufficient  in  amount  to  make  good  the  damage 
done  by  the  acts  of  his  attorney;  for  the  mode  of  punishment 
is  discretionary,  and  if  a  contempt  by  an  attorney  is  a  con- 
tempt by  the  client,  then  the  client  is  liable  to  the  same  pun- 
ishment as  the  attorney;  and  if,  under  the  circumstances,  the 
attorney  would  be  punishable  with  imprisonment,  it  follows 
that  the  client  would  be  also.  This  necessarily  results  from 
regarding  the  acts  of  the  attorney  as  the  acts  of  the  client  for 
the  purpose  of  contempt  proceedings.  And,  further,  the  inflic- 
tion of  a  line  of  only  sufficient  amount  to  compensate  the  ag- 
grieved i^arty  is  by  way  of  punishment  for  the  misconduct 
complained  of,  and,  as  such,  imprisonment  follows  until  pay- 
ment be  made.*  To  punish  one  for  the  act  of  another  is 
contrary  to  natural  justice  and  the  established  i^rinciiDles  of 
law."(^) 

§  1S7.  A  court  may  be  in  contempt,  and  the  judge  pun- 
ished, for  obstructing  in  any  way  the  execution  of  a  judg- 
ment in  a  higher  court. (c)t 

§  188.  There  can  be  no  punishment  for  contempt  in  dis- 
obedience of  an  order  made  by  a  judge  out  of  court,  and  not 
relating  to  any  case  i^ending  in  the  court. (d)  Yet,  where  one 
has  been  dispossessed  of  a  tract  of  land  by  a  judgment  and 
process  of  court,  and  afterwards  re-enters,  he  may  be  pun- 
ished for  contempt  notwithstanding  there  is  no  action  pend- 
ing at  the  time  of  the  re-entry. (f)t 

§  189.  Contempts  for  not  paying  money  are  mainly,  per- 
haps exclusively,  confined  to  matters  of  alimony,  although 

*But  this  is  certainly  an  anomaly,  ter.    Railroads.  Judge,  lOBusli.  564. 

altliough    a    party   injured    by  an  Nor  can  one  court  review,  by  lmbea» 

act   of    contempt  doubtless  might  corpus,  the  judgment  of  another  ia 

have  an  action  of  trespass.  contempt  proceedings.    Shattuckw. 

(ft)Satterlee  «.  De  Comeau,  7  Rob.  State,  .')1  Miss.  50 ;  Phillips «. Welch, 

671.  12  Nev.  159  ;  People  ex  rel.  v.  Jacobs^ 

(c)State  ex  rel.  v.  Ilerron,  24  La.  68  N.  Y.  8. 
An.  624.  (d)People  v.    Brennan,  45   Barb. 

tBut  a   court  of   ecpiity   cannot  347. 
punish  the  officer  of  a  law  court  for  (^) People  ex  rel.  v.  Dwindle,  2^ 

obeying    the    orders    of    the    lat-  Cal.  633. 


ISS  CONTEMPTS. 

herein  these  are  not  regarded  as  criminal  so  much  as  in  the 
light  of  a  civil  execution,  though  criminal  in  form.(/)  But  it 
is  not  allowed  in  New  Yoi'k.(g}  In  Michigan  there  must  be  a 
demand  and  refusal,  (/i)  And  it  is  a  sufficient  answer  that  the 
respondent  is  unable  to  pay,  and  that  this  inability  is  not  his 
intentional  fault. (i) 

§  190.  Injunctions  may  be  enforced  by  proceedings  in  con- 
tempt, as  an  injimction  against  the  infringement  of  a  pat- 
ent, (J)*  or  against  waste;  and  not  only  must  the  party  ab- 
stain from  violating  the  injunction  himself,  but  he  must 
require  its  observance  by  his  employes,  or  he  will  subject  him- 
self to  attachment. (/t) 

The  mere  wrongful  suing  out  of  an  injunction  is  not  a  con- 
tempt of  the  authority  of  the  court.  (Z) 

Where  there  has  been  a  clear  breach  of  an  injunction,  it  is 
held  that,  as  a  part  of  the  fine,  the  opposite  party  may  have 
expenses  and  attorney's  fees  in  prosecuting  the  proceedings 
in  attachment  allowed  him  in  the  United  States  courts (»i)  and 
in  New  York.(/i) 

§  191.  Where  a  justice  of  the  peace  was  hearing  a  motion 
for  continuance,  an  attorney,  on  resisting  the  motion,  became 
angry  and  addressed  to  the  justice  this  language,  "You  can 
fine  and  be  damned,"  on  being  reproved  for  his  violence. 
This  was  held  to  be  a  contempt  ^n  open  court,  for  which  it 
was  the  duty  of  the  justice  to  punish  him,  and  for  this  pur- 
pose a  warrant  of  arrest  could  be  directed  by  the  justice  to 
the  sheriff  of  the  county,  (o) 

§  192.  Proceedings  for  contempt  are  never  retroactive,  so 

(/)Buck  V.  Buck,  60  111.  106.  solution  of  a  corporation.     Woven 

(.9)Lansing  v.    Lansing,   4  Lans.  Tape  Skirt  Co.  12  Hun.  111. 

280-  (/?;)Poltner  v.  Russell,  33  Wis.  203. 

(A) Brown  «.  Brown,  22  Mich.  299.  (Z) Villa vas  v.  Walker,  24  La.  An. 

{i)(ia\  land  ».  Galland,  44  Cal.  475.  213. 

And   in  New  York.     Cochran  v.  (TO)Doubleday      v.     Sherman,     8 

Ingersoll,  13  llun.  :J68.  Blatch.  C.  C.  46. 

(J)Sickels«.  Borden,  4  Bhitch.  C.  (7i)People   v.  Spalding,  2   Paige, 

C.  14;  also  p.  191.  ;j2(; ;  Davis  v.  Sturtevant,  4  Duer, 

*0r  interforence   witli  a  ])atent-  14s. 

right,  even  wliich,  by  order  of  court,  (,>)llill  w.  Craiulall,  .)2  111.  73. 
is  vested   in  a  receiver  on  the  dis- 


CONTEMPTS.  180 

as  to  include  acts  performed  before  the  existence  of  the  order 
which  is  claimed  to  have  been  thereby  violated;  as,  for  in- 
stance, for  publishing  proceedings  before  there  was  an  order 
or  rule  prohibiting  such  publication  ;(j9)  or  where  there  is  an 
injunction  forbidding  the  removal  of  certain  bonds  beyond 
the  jurisdiction  of  the  court,  which  bonds  had  already  been 
thus  removed. ((/) 

§  193.  It  is  a  rule  that  unless  there  is  a  positive  order  of 
court  to  be  obeyed  without  delay,  or  unless  the  acts  are  in  the 
presence  of  the  court,  a  citation  to  show  cause  should  first 
issue,  (r)  which,  generally,  may  be  served  on  the  attorney  of 
the  party,  unless  in  criminal  contempts,  in  which  personal 
notice  is  necessary. (s)  The  defendant  may  then  appear  and 
clear  himself  of  the  contempt  by  answer,  if  at  law,  or  by 
proof,  if  in  chancery.(^) 

§  194.  Where  one  makes  answer  that  he  had  no  intention 
to  obstruct  the  execution  of  a  decree  of  the  court,  but,  as  a 
practicing  attorney,  he  had  acted  therein  in  good  faith  and 
without  disrespect  to  the  court,  it  will  clear  him  of  the  con- 
tempt, (?/)  the  actual  intention  of  the  respondent  being  ma- 
terial.(r)  But  it  is  no  defence  that  an  appeal  has  been  taken 
from  the  order  disobeyed,  (w)  Nor  where  there  has  been  a 
commitment  for  contempt  by  a  justice  of  the  peace  can  the 
order  or  judgment  of  the  justice  usually  be  reviewed  as  to  its 
validity. (.r)  Nor  is  it  a  defence  that  the  order  was  irregularly 
served, (//)  or  an  injunction  of  which  the  party  has  actual 
knowledge. (^)  Nor  will  a  continuance  after  refusal,  as,  for 
example,  in  disobeying  a  decree  to  convey  land,  always  clear 
the  contempt. ((/)  But  in  all  cases  in  courts  of  law  where 
there  is  a  disavowal  of  disrespect  and  no  order  is  violated, 

(p)Dunliamo.  State,  G  Clarke,  2.j3.  (w)People  ex  rel.  v.  Bryan,  53  N. 

(5)  Witter  V.  Lyon,  34  Wis.  57G.  Y.  410. 

{r)Ex  parte  Ireland,  38  Tex.  356.  («)Robb  v.  McDonald,  29  la.  330 ; 

(s)Pitt  V.  Davison,  37  N.  Y.  235.  Williams,  J.,  dissenting. 

(/)T^uck«.  Buck*  60I1I.  106;  State  (//)Billings    v.    Carver,   54   Barb. 

V.  I'::irl,41  Ind.  464.  41. 

(w)  Wells    V.    Comnionwcaltli,   21  (.c)Mcad, Trustee, »).  Norris, 21  Wis. 

Gratt.  506.  315. 

(r)In  the  matter  of  Moore,  63  S.  (rr)Snovvman  v.  Harford.   57  Me. 

C.  40S.  39 S. 


190  CONTEMPTS. 

tbere  being  a  negative  rather  than  positive  and  remote  rather 
than  direct  infraction,  a  disavowal  will  clear  the  contempt. 

It  is  a  defence  that  one  was  hindered  from  obeying  the 
order  of  court  by  the  act  of  the  adverse  party,  even  if  that  act 
was  lawful. (fc) 

§  195.  A  sentence  for  contempt  may  be  remitted  by  the 
pardon  of  the  executive  power,  but  not  by  the  court  itself,  (c) 

§  19(1.  A  party  while  in  contempt  also  may  defend  but  not 
prosecute  litigation. (ri)  And  so  in  New  York  it  was  held 
projier  to  strike  out  a  plaintiff's  comj)laint  when  he  refused 
to  produce  a  paper  in  his  possession. (e) 

(6)McC'art;in  i).   Van  Syckel,    10  ((Z)Mead  «.  Norris,  supra.     But 

Bosw.  (i!)4.    See,  to  the  same  effect,  see  Hazard  «.  Durant,  11  R.  I.  209. 

Hull  V.  Harris,  45  Conn.  546.  (6)Shelp«.  Morrison,  13  Hun.  110. 

(c)In  reMuIlee,  7  Blatch.  C.  0.  24. 


NEWSPAPER    CONTEMPTS.  191 


CHAPTEE  XXIV. 

NEWSPAPER  CONTEMPTS. 
?  197.  Indirect  contempts — general  rule  and  examples. 

§  197.  We  treated  of  direct  contempts  in  the  last  chapter, 
and  now  the  question  of  indirect  or  constructive  contempts 
comes  up  for  consideration,  these  not  being  in  the  cause,  nor  in- 
volving violence  in  the  presence  of  the  court.  It  is  not  wonder- 
ful that  such  cases  as  involve  the  right  of  newspaper  publica- 
tions should  awaken  intense  public  interest,  since  herein  there 
is  immediate  collision  between  two  of  our  most  cherished  and 
most  essential  institutions — courts  of  justice  and  the  press. 

The  general  rule  is  held  to  be  that  where  a  j)ublication, 
being  read  by  jurors  and  attendants  on  the  court,  would  have 
a  tendency  to  interfere  with  the  proper  and  unbiased  admin- 
istration of  the  law  in  pending  cases,  it  may  be  adjudged  a 
contempt,  and  accordingly  punished.  A  libel  not  directly 
calculated  in  some  way  to  hinder,  obstruct  or  delay  the  ad- 
ministration of  justice  is  not  to  be  summarily  punished  as  a 
contempt;  so  that  a  publication  reflecting  on  a  grand  jury,  or 
on  any  member  of  it,  relating  only  to  a  past  action  thereof, 
and  not  tending  to  interfere  with  future  duties,  cannot  be 
treated  as  a  contempt  of  court.  Storey  v.  People,  79  111.  -15. 
And  so,  where  a  newspaper  publication  misrepresented  the 
action  of  a  chancellor,  in  modifying  a  decree  of  injunction, 
and  yet  there  was  no  apparent  obstruction  to  justice  arising 
from  it,  it  was  held  there  was  no  contempt,  and  especially  as 
the  defendant  disclaimed  all  intentional  disrespect  to  the 
court.  Morrison  v.  Moat,  4  Edw.  25.  The  contemj)t  must 
be  directed  against  the  court,  or  some  jjart  thereof,  as  the 
judge,  or  the  jury,  and  not  against  the  parties  merely.  And 
so,  where  a  governor  brought  suit  for  libel  against  the  chair- 


102  NEWSPAPER    CONTEMPTS. 

luiin  of  a  public  meeting,  and,  pending  the  suit,  another  pub- 
lic meeting  was  held,  which  passed  resolutions  on  the  subject 
of  the  suit,  and  bitterly  denounced  it,  the  court  would  not 
punish  the  critics  although  the  language  employed  in  the  crit- 
icism was  very  severe,  viz. :   "Eesolved  that  we  consider  the 
prosecution  commenced  by  Governor  Lewis  against  Thomas 
Farmer,  as  chairman  of  a  public  meeting  of  free  citizens,  to 
be  an  unwarrantable  attempt  to  suppress  and  destroy  one  of 
our  dearest  and  most  valuable  privileges — that  of  assembling 
together  openly  and  publicly;  of  discussing  freely  the  con- 
duct of  public  men  and  public  measures ;  and  of  expressing 
our  resolutions  and  opinions  to  the  world;  and  that,  there- 
fore, such  prosecution  evinces  an  intolerant  spirit,  unbecom- 
ing the  chief  magistrate  of  a  free  state,  disgraceful  in  a  free 
government,  and  insulting  to  the  feelings  of  every  citizen  who 
was  present  at  that  meeting."    Which  attack  was  also  dupli- 
cated in  the  following  breezy  resolution :      "In  prosecuting 
the  chairman  of  a  general  meeting  of  citizens,  for  resolutions 
publicly  passed  as  the  sense  and  opinion  of  that  meeting, 
thereby  exhibiting  an  instance  of  and    disposition  towards 
tyranny,  novel  and  unprecedented,  dangerous  to  civil  liberty, 
repugnant  to  the  spirit  and  genius  of  our  free  constitution, 
and  utterly  subversive  of  the  principles  of  an  elective  govern- 
ment."   People  ex  rel.  v.  Few  et  al.  2  Johns,  290.    But  criticism, 
on  the  other  hand,  is  not  to  be  suppressed,  even  as  to  courts 
and  their  proceedings,  and  the  New  Hampshire  court  say,  per 
Perley,  C.  J. :     "The  publishers  of  newspapers  have  the  right, 
but  no  higher  right  than  others,  to  bring  to  public  notice  the 
conduct  of  courts  and  parties,  after  the  decision  has  been 
made ;  and,   provided  the  publications  are  true  and  fair  in 
spirit,  there  is  no  law,  and  I  am  sure  there  is  no  disposition, 
to  restrain  or  punish  the  freest  expression  of  the  disapproba- 
tion that  any  person  may  entertain  of  what  is  done  in  or  by 
the  courts,  "(fl) 

But  this  rule,  in  Iowa,  is  very  closely  restricted.     And  in 

(a)Sturoc's  Case,  48  N.  H.  432.  and  thus  tend  to  obstruct  the  ad- 
Herein  it  was  held  tliat  strictures  on  ministration  of  justice,  must  be 
a  court,  Avhich  would  reach  jurors,       held  as  a  contempt. 


NEWSPAPER    CONTEMPTS.  193 

a  case  where  there  were  no  less  than  three  arrests  for  con- 
tempt, for  successive  publications,  the  fines  assessed  were, 
on  appeal,  judged  erroneous.  The  first  article  (Burlington 
Hawkeye,  1857)  was  the  following:  "In  the  malicious  pros- 
ecution pending  against  -J.  F.  Abrahams,  under  the  rulings  of 
the  court,  he  was  convicted  of  leasing  his  house  for  improper 
purposes,  and  fined  by  Judge  Claggett  one  hundred  dollars. 
Upon  his  appearing  and  ottering  to  appeal  to  the  supreme 
court.  Judge  Claggett  fixed  the  bail  at  Jifty  thousand  dollars. 
What  do  our  readers  think  of  the  fairness  and  impartiality 
of  a  judge  who  is  guilty  of  this  extortionary  demand,  in 
direct  violation  of  the  eighth  amendment  to  the  constitution — 
'excessive  bail  shall  not  be  required?'  In  the  light  of  this 
oppressive  demand,  it  is  easy  to  see  w^iat  an  engine  of  injus- 
tice and  outrage  our  courts  of  justice  are  capable  of  being 
made  in  the  hands  of  a  vindictive  and  implacable  man,  such 
as  we  hope  Judge  Claggett  will  not  prove  himself ;  or  corrupt 
and  infamous  men,  such  as  Leeompte  and  Cato,  of  Kansas. 
We  do  not  believe  our  records  have  ever  before  been  dis- 
graced by,  or  our  archives  contained,  such  a  bail-bond  aa 
that  demanded  by  Claggett,  and  given  yesterday  by  J.  F. 
Abrahams.  Fifty  thousand  dollars  bail  in  a  case  wherein 
the  sentence  of  the  court  was  a  fine  of  one  hundred  dollars ! 
Has  the  case  a  j)arallel?"(/j)  If  the  statement  above  was 
correct,  it  is  hard  to  say  that  the  court  was  not  worthy  of 
contempt. 

In  North  Carolina,  in  1869,  a  publication  appeared,  reflect- 
ing on  the  supreme  court,  from  one  hundred  and  ten  members 
of  the  bar,  out  of  about  five  hundred,  who,  however,  were  dis- 
charged on  a  disavowal, in  a  way  that  intimates  clearly  that  the 
liberty  of  the  press,  so  far  as  the  bar  is  concerned,  has  become 
full-blown  in  that  state,  and  showing,  also,  conclusively  that 
disavowals  are  readily  available  and  exceedingly  effectual 
there.  The  disavowal  reminds  me,  indeed,  of  one  attributed 
to  an  eminent  attorney,  who  abandoned  a  case  in  the  very 
midst,  on  the  ruling  of  the  judge,  thrusting  his  books  into  his 
green  bag,  and  stamping  down  the  aisle  to  the  door,  in  a  rage, 
(//) Dunham  v.  Slate,  6  Clarke  (la.)  250. 

v.  1—13 


1<»4  NEWSPAPER    CONTEMPTS. 

ami  who,  on  being  called  to  by  the  judge  and  threatened  with 
a  line  for  contempt  of  court,  whirled  and  replied:  "Your 
honor,  I  have  expressed  no  contempt  for  this  court,  but  have, 
on  the  contrary, done  my  utmost  to  conceal  my  real  feelings;" 
and  then  continued  his  exit,  muttering  that  he  found  it  very 
hard  to  do  so ! 

The  North  Carolina  utterance  was  in  the  following  words : 

"a   solemn   protest    of    the    bar   op   north   CAROLINA. 

"The  undersigned,  present  or  former  members  of  the  bar 
of  North  Carolina,  have  witnessed  the  late  public  demonstra- 
tions of  political  partisanship,  by  the  judges  of  the  supreme 
court  of  the  state,  with  profound  regret  and  unfeigned  alarm 
for  the  purity  of  the  future  administration  of  the  laws  of  the 
land.  Active  and  open  participation  in  the  strife  of  political 
contests  by  any  judge  of  the  state,  so  far  as  we  recollect,  or 
tradition  or  history  has  informed  us,  was  unknown  to  the  peo- 
ple until  the  late  exhibitions.  To  say  that  these  were  wholly 
unexpected,  and  that  a  prediction  of  them  by  the  wisest 
among  us  would  have  been  spurned  as  incredible,  would  not 
express  half  of  our  astonishment,  or  the  painful  shock  suf- 
fered by  our  feelings,  when  we  saw  the  humiliating  fact  ac- 
comphshed.  Not  only  did  we  not  anticipate  it,  but  we  thought 
it  was  impossible  in  our  day.  Many  of  us  have  passed 
through  political  times  almost  as  excited  as  those  of  to-day, 
and  most  of  us  recently  through  one  more  excited,  but  never 
before  have  we  seen  the  judges  of  the  supreme  court,  singly 
or  en  masse,  moved  from  that  becoming  propriety  so  indispen- 
sable to  secure  the  respect  of  the  people,  and,  throwing  aside 
the  ermine,  rush  into  the  mad  contest  of  politics,  under  the 
excitement  of  drums  and  flags.  From  the  unerring  lessons  of 
the  past  we  are  assured  that  a  judge  who  openly  and  publicly 
displays  his  political  party  zeal  renders  himself  unfit  to  hold 
the  balance  of  justice,  and  that  whenever  an  occasion  may  offer 
to  serve  his  fellow  partisans  he  will  yield  to  the  temptation,  and 
the  'wavering  balance'  will  shake.  It  is  a  natural  weakness 
in  man  that  he  who  warmly  and  publicly  identifies  himself 
with  a  political  party  will  be  tempted  to  uphold  the  party  that 


NEWSPAPER    CONTEMPTS.  li)5 

upholds  him,  and  all  experience  teaches  us  that  a  partisan 
judge  cannot  be  trusted  to  settle  the  great  principles  of  a 
political  constitution  while  he  reads  and  studies  the  book  of 
its  law^s  under  the  banners  of  a  party. 

"Unwilling  that  our  silence  should  be  construed  into  an 
indifference  to  the  humiliating  spectacle  now  passing  around 
us,  influenced  solely  by  a  spirit  of  love  and  veneration  of  tlie 
past  purity  which  has  distinguished  the  administration  of  the 
law  in  our  state,  and  animated  by  the  hope  that  the  voice  of 
the  bar  of  North  Carolina  will  not  be  powerless  to  avert  the 
pernicious  example  which  we  have  denounced,  and  to  repress 
its  contagious  influence,  we  have,  under  a  sense  of  solemn 
duty,  subscribed  and  published  this  paper." 

The  court,  thus  assailed  by  its  own  bar,  in  part,  cited  the 
signers  to  answer,  and  the  return  was  essentially  that  the 
l^ublication  did  not  tend  to  impair  the  respect  due  to  the 
authority  of  the  court;  that  it  was  not  libellous;  that  the 
paper  was  prepared  during  the  presidential  canvass,  and  was 
withheld  until  after  the  close  thereof,  to  avoid  the  appearance 
of  issuing  a  partisan  document ;  that  its  purpose  was  to  ex- 
press disapprobation  of  the  conduct  of  individuals  occupying 
high  judicial  stations,  but  that,  so  far  from  committing  an 
intentional  contempt  of  the  supreme  court,  or  impairing  the 
respect  due  to  its  authority,  the  motive  of  the  respondents 
was  to  preserve  the  purity  which  had  ever  distinguished  the 
administration  of  justice  by  the  courts  of  the  state. 

The  court,  in  self-defence,  declared  :  "The  paper  is  drafted 
with  all  the  adroitness  of  a  skilful  lawyer,  and,  under  cover 
of  'love  and  veneration  for  the  past  purity  which  has  dis- 
tinguished the  administration  of  law  in  our  state,'  aims  a 
deadly  blow  at  the  court  to  which  that  sacred  trust  is  now 
conhded.  Stripped  of  the  beautiful  dress  by  which  it  is  art- 
fully disguised  it  amounts  to  this  :  A  judge  who  openly  and 
publicly  displays  his  political  party  zeal  renders  himself 
unfit  to  hold  the  'balance  of  justice,'  and  whenever  an  occa- 
sion may  offer  to  serve  his  fellow  partisans  he  will  yield  to  the 
temptation,  and  the  'wavering  balance  will  shake.'  'Never 
before  have  we  seen  the  judges  of  the  supreme  court,  singly 


l;i(3  NEWSPAPER    CONTEMPTS. 

or  cn  masse,  rush  into  the  mad  contest  of  politics  under  the 
excitement  of  di'ums  and  flags;'  therefore,  the  supreme  court, 
which  is  composed  of  these  judges,  is  'unfit  to  hold  the  bal- 
ance of  justice,'  and  will,  on  occasion,  yield  to  temptation  in 
favor  of  a  fellow  partisan. 

"If  you  hurt  the  head,  or  arm,  or  leg,  or  limb,  or  member, 
or  any  part  of  the  body,  you  hurt  the  man.  And  the  idea  of 
an  intention  to  injure  the  character  of  the  justices  who  com- 
pose the  supreme  court,  singly  or  en  masse,  without  an  inten- 
tion to  injure  the  court,  is  simply  ridiculous. 

"The  only  allegation  of  fact  on  which  rests  this' 'solemn 
protest'  is  that  the  'judges  singly  or  en  masse  did  rush  into 
tiie  mad  contest  of  politics  under  the  excitement  of  drums  and 
flags.'  Is  this  allegation  of  fact  true,  or  is  it  false?  There 
is  no  pretence  that  it  is  true.  It  is  said  this  is  a  figure  of 
speech  suggested  by  something  that  w'as  expected  to  occur 
but  never  did  occur,  so  the  allegation  of  fact  is  false,  and  the 
inference  drawn  from  it  is  also  false. 

"In  our  judgment  the  paper  is  libellous,  and  'doth  tend  to 
impair  the  respect  due  to  the  authority  of  the  court.'  Indeed, 
the  learned  counsel  did  not  press  this  point,  and  were  content 
to  take  the  ground  that  there  was  no  criminal  intent.  Every 
man  is  presumed  to  intend  the  natural  consequence  of  his  act. 
If  one  wilfully  sets  fire  to  his  own  house,  which  is  so  near  his 
neighbor's  house  that  if  the  one  burns  the  other  must  burn 
also,  and  both  houses  are  burned  down,  the  man  is  guilty  of 
arson — the  criminal  intent  is  presumed.  So,  in  an  indict- 
ment for  libel,  this  ground  would  be  untenable  except  on  proof 
of  insanity.     ********* 

"In  this  proceeding,  as  the  court  is  judge  in  its  own  case 
in  the  Jirst  instance,  where  a  case  is  made  out  in  the  judg- 
ment of  the  court,  the  party  in  the  last  instance  is  allowed  to 
try  himself.  His  intention  is  locked  within  his  own  breast,  is 
known  to  himself  alone,  and  he  is  allowed  to  clear  himself  by 
his  own  avowal,  "(c) 

But  the  supreme  court  of  Illinois  made  more  thorough  work 
of  its  visitation  on  the  proprietor  and  managing  editor  of  the 
(c)  Mutter  of  Moore  et  al.  63  K^.  C.  398. 


NEWSPAPER    CONTEMPTS.  197 

Chicago  Evening  Journal,  although  a  similar  disavowal  was 
interposed,  and  although  the  former  never  had  seen  the  arti- 
cle until  it  was  printed.  The  court,  however,  was  divided, 
standing  four  to  three. 

The  publication  was  made  in  regard  to  a  murder  case  pend- 
ing before  the  supreme  court  on  error,  in  October,  1872,  and 
was  as  follows : 

"the  case  op  eafferty. 

"At  the  time  a  writ  of  supersedeas  was  granted  in  the  case 
of  the  murderer,  Chris.  Eafferty,  the  public  was  blandly  as- 
sured that  the  matter  would  be  examined  into  by  the  supreme 
court  and  decided  at  once;  that  possibly  the  hanging  of  this 
notorious  human  butcher  would  not  be  delayed  for  a  single 
day.  Time  speeds  aw^ay,  however,  and  we  hear  of  nothing 
definite  being  done.  Eafferty's  counsel  seems  to  be  studying 
the  policy  of  delay,  and  evidently  with  success.  The  riff-raff 
who  contributed  fourteen  hundred  dollars  to  demonstrate  that 
'hanging  is  played  out'  may  now  congratulate  themselves  on 
the  success  of  their  little  game.  Their  money  is  operating 
splendidly.  We  have  no  hesitancy  in  prophesying  clear  to 
the  end  just  what  will  be  done  with  Eafferty.  He  will  be 
granted  a  new  trial.  He  will  be  tried  somewhere  within 
a  year  or  two.  '  He  will  be  sentenced  to  imprisonment  for 
life.  Eventually  he  will  be  pardoned  out.  And  this  in  spite 
of  all  our  public  meetings,  resolutions,  committees,  virtuous 
indignation,  and  what  not.  And  why?  Because  the  sum  of 
fourteen  hundred  dollars  is  enough  nowadays  to  enable  a 
man  to  purchase  immunity  from  the  consequences  of  any 
crime.  If  next  winter's  session  of  the  legislature  does  not 
hermetically  seal  up  every  chink  and  loophole  through  which 
murderers  now  escape,  it  will  deserve  the  bitter  censure  of 
every  honest  man  in  Illinois.  We  must  simplify  our  modes 
of  procedure  in  murder  trials.  The  criminal  should  be  tried 
at  once,  and  when  found  guilty  should  be  hanged  at  once,  and 
the  quicker  hanged  the  better.  The  courts  are  now  com- 
pletely in  the  control  of  corrupt  and  mercenary  shysters — 
the  jackals  of  the  legal  profession — who  feast  and  fatten  on 


193  NEWSPAPER    CONTEMPTS. 

liuninn  blood  spilled  by  the  hands  of  other  men.  All  this 
must  be  remedied.  There  can  be  found  a  remedy,  and  it 
nuist  be  found." 

The  court,  while  commenting  upon  the  disastrous  conse- 
quences of  such  publications,  even  upon  the  supreme  court, 
and  citing  authorities  as  to  constructive  contempts,  enter  this 
disclaimer :  "Let  us  say  here,  and  so  plainly  that  our  position 
can  be  misrepresented  only  by  malice  or  gross  stupidity,  that 
we  do  not  deprecate,  nor  should  w^e  claim  the  right  to  punish, 
any  criticism  the  press  may  choose  to  publish  upon  our  decis- 
ions, opinions  or  official  conduct,  in  regard  to  cases  that  have 
passed  from  our  jurisdiction,  so  long  as  our  action  is  correctly 
stated,  and  our  official  integrity  is  not  impeached.  The  re- 
spondents are  correct  in  saying,  in  their  answers,  that  they 
have  a  right  to  examine  the  proceedings  of  any  and  every 
department  of  the  government.  Far  be  it  from  us  to  deny 
the  right.  Such  freedom  of  the  press  is  indispensable  to  the 
preservation  of  the  freedom  of  the  people.  But,  certainly, 
neither  these  respondents,  nor  any  intelligent  person  con- 
nected with  the  press,  and  having  a  just  idea  of  its  responsi- 
bilities, as  well  as  its  powers,  will  claim  that  it  may  seek  to 
control  the  administration  of  justice,  or  influence  the  decision 
of  pending  causes." 

Justice  Scott,  dissenting,  denied  the  power  of  courts  to  pun- 
ish constructive  contempts,  this  power  being  limited  properly 
to  contempts  committed  in  the  presence  of  the  court.  In 
addition  to  this.  Justice  Sheldon,  also  dissenting,  said  he  was 
unwilling  to  admit  that  an  appellate  court  was  likely  to  be 
affected  or  embarrassed,  in  the  administration  of  justice,  by 
newspaper  paragraphs. 

The  editor  was  fined  two  hundred  dollars  for  admitting  the 
article  after  seeing  it,  although  it  was  not  written  by  him; 
and  the  proprietor  one  hundred  dollars  for  not  watching  out 
for  it,  it  would  seem.  But  they  were  consoled  by  the  ultimate 
hanging  of  Eaflerty.(fZ) 

I  presume  there  is  no  need  of  pursuing  this  subject  any 
further  than  to  remark  that,  while  the  liberty  of  the  press 
(d)reoijlet\  AVilson,  G4  111.  195. 


NEWSPAPER   CONTEMPTS.  199 

ought  to  be  maintained,  there  is,  at  the  present  time,  a  very 
great  danger  to  the  perpetuity  of  all  our  institutions  arising 
from  the  disorganizing  consequences  of  newspaper  licentious- 
ness. The  limit  laid  down  by  the  majority  of  the  court  in  the 
Journal  case  may  be  found,  perhaps,  to  be  the  true  one  after 
all.  There  must  be  barriers  erected  somewhere,  and  they 
might  as  well,  probably,  stand  at  this  point  as  at  any  other 
boundary.  The  Iowa  court  has  held  that,  notwithstanding  a 
disavowal  of  intentional  disrespect,  the  meaning  and  intent 
of  a  publication  may  be  proved  by  appropriate  evidence,  and 
judgment  be  rendered  accordingly,  (e) 

(6)Henry  v.  Ellis,  4t)  la.  305. 


PART  II. 


SPECIFIC   ORIGINAL  JURISDICTIONS. 


PREFA-TORT   NOTE. 

In  treating  of  the  topics  of  this  Part  of  the  present  Treatise  we  shall 
have  occasion  to  notice — First,  Specific  Jurisdictions  of  a  general  nature, 
as  Common  Law,  Equity,  Admiralty,  Probate,  etc.;  and,  second,  Specific 
Jurisdictions  of  a  special  nature,  as  Habeas  Corpus,  and  the  like. 

Moreover,  it  will  be  needful  to  keep  original  and  appellate  jurisdictions 
distinct,  although  both  co-exist  often  in  the  same  court.  The  latter  are 
reserved  for  the  second  volume.  The  matters  of  exclusive  and  concurrent 
jurisdiction  have  very  little  practical  importance,  as  to  state  courts,  any 
further  than  the  principle  goes  which  is  explained  in  the  First  Part,  namely: 
that  where  two  equal  courts  have  concurrent  jurisdiction  of  the  subject- 
matter  of  a  cause,  the  one  first  acquiring  actual  jurisdiction  of  the  cause 
retains  it  free  from  interference  by  the  other.  It  is  much  to  be  desired, 
and,  I  think,  it  will  eventually  be  realized,  that  such  a  thing  as  concurrent 
jurisdiction  should  not  exist,  but  that  all  courts  should  have  distinct,  and  not 
overlapping,  boundary  lines  thrown  around  their  legitimate  spheres  of 
actioQ. 


(201)* 


THE 

JURISDICTION^  OF  COURTS. 


PART   II. 
SPECIFIC  ORIGINAL  JURISDICTIONS. 


CHAPTEE   I. 

THE    COMMON   LAW. 


I 


$  198.  Explanation  of  the  common  law, 

190.  Basi.s  of  jurLsprudence. 

200.  Modification  of  the  common  law. 

201.  Distinction  between  principles  and  rules. 

202.  The  standard  of  judgment  herein. 

203.  What  the  common  law  is. 

204.  Examples  of  modification. 

205.  No  modification  to  be  implied  from  a  statute. 

206.  Effect  of  statutes  prescribing  remedies. 

207.  Common  law  as  to  the  United  States  courts. 

208.  Sources  of  knowledge  of  common  law — general  rules. 

209.  Effect  of  a  want  of  early  precedents  in  this  country. 

210.  Exemplifications  of  public  grants. 

211.  Process  of  attachment. 

212.  Remedies  in  United  States  courts. 
21.3.  Offences  and  crimes. 

214.  Felony  merging  private  wrongs. 

§  198.  Although  what  we  term  the  common  law  was  derived 
from  the  common  law  of  England,  yet  it  is  not,  in  all  respects, 
identical  therewith.     The  general  principles  were  held  to  he 

(2U;!) 


504:  THE    COMMON   LAW. 

the  MrtlirigUt  of  the  colonies;  but  the  system  was  adopted, 
nioditied,  or  discarded,  according  as  it  was  suitable  to  the 
situation  and  circumstances  of  the  settlers. (a)  In  conse- 
quence, the  system  has  never  been  in  force,  in  all  of  its 
provisions,  anywhere  in  our  country.  No  state  has  ever 
adopted  it,  with  all  its  incidents;  so  that  what  is  common 
law  in  one  state  may  not,  in  some  particulars,  be  so  in 
another  state;  and  the  judicial  decisions,  and  usages,  and 
customs  in  each  are  to  be  taken  as  the  true  criterion.  And 
there  is  no  principle  prevading  the  Union,  with  the  authority 
of  law,  which  is  not  embodied  in  the  constitution  or  laws. 

Even  as  to  the  federal  system  itself,  the  common  law  can 
only  be  made  a  part  of  it  by  actual  legislative  adoi5tion.(^) 

§  199.  Nevertheless,  certain  states  excepted,  the  common 
law  is  the  chief  basis  of  the  jurisprudence  of  the  state  ;(c)  and 
hence,  in  the  absence  of  evidence  to  the  contrary,  each  one 
presumes  the  common  law  to  prevail  in  sister  states,  the 
same  as  within  its  own  limits,  or  the  same  as  it  exi«ited  in 
England. ((Z)  But  a  similar  presumption  does  not,  of  course, 
exist  as  to  statutes,  for  this  would  directly  contradict  'the 
presumption  as  to  the  existence  of  the  common  law.(e) 

California  includes  within  the  exception  the  states  of  Florida 
and  Texas,  as  well  as  Louisiana.  And  the  court  thus  lay 
down  the  distinction :  "In  the  present  case  there  is  no  proof 
what  the  law  of  Texas  is  upon  these  subjects.  One  of  the 
counsel  of  the  defendants  insists  that,  in  the  absence  of  such 
proof,  the  rule  is  to  presume  the  existence  of  the  common  law, 

(a) Van  Ness  «.  Pacard,  2  Pet.  144.  (5)  Wheaton  v.  Peters,  8  Pet.  658, 

As    expressed    by   the    Alaliama  659. 

court:  "  The  common  law  of  Eng-  (cjBaines    v.    Schooner,   1    Bald. 

land  is  not  in  all  respects  the  com-  (C.  C.)  557. 

mon    law    of    this   state.      It   was  (d)Shepherd  ».  Nabors,  6  Ala.  637; 

adopted  and   prevails  here  only  so  Walker's  Adm'r  o.  Walker's  Adm'r, 

far  as  it  is  consistent  with  our  in-  41  Ala.  358  ;  Pomeroy  r.Ainsworth, 

stitutions  and  the  public  policy  of  22  Barb.    129;    Miles  v.   Collins,  1 

tlie  state  as  deduced  from  ourlegis-  Met.  (Ky.)  :512;  Titus  v.  Scantling, 

lation."     Nelson  w.McC'raryg^fl^.iiO  4Blackf.  92;    Schuman  ti.  :Mar!cv, 

Ala.  309;  R.  R.  «.  Peacock,  25  Ala.  29  Ind.  4til. 

229;    Barlow  v.   Lainl)ert,    2S  Ala.  (.')II()Ughtaling   v.    Ball,    19    Mo. 

^*^^-  8G  ;    VVliite  v.  Knapp,  47  Barb.  554. 


THE    COMMON    LAW.  205 

and  to  be  governed  by  its  principles.  There  is  no  doubt  that 
the  common  law  is  the  basis  of  the  laws  of  those  states  which 
were  originally  colonies  of  England  or  carved  out  of  such  col- 
onies. It  was  imj)orted  by  the  colonists  and  established,  so 
far  as  it  was  applicable  to  their  institutions  and  circumstances, 
and  was  claimed  by  the  congress  of  the  United  States,  in  1774, 
as  a  branch  of  those  '  indubitable  rights  and  liberties  to  which 
the  respective  colonies '  were  entitled.  1  Kent's  Com.  343. 
In  all  the  states  thus  having  a  common  origin,  formed 
from  colonies  which  constituted  a  part  of  the  same  empire, 
and  which  recognized  the  common  law  as  the  source  of  their 
jurisprudence,  it  must  be  presumed  that  such  common  law 
exists.  It  has  been  so  held  in  repeated  instances,  and  it  rests 
upon  parties  who  assert  a  different  rule  to  show  that  matter 
by  proof.  A  similar  presumption  must  prevail  as  to  the  exist- 
ence of  the  common  law  in  those  states  which  have  been 
established  in  territory  acquired  since  the  revolution,  where 
such  territory  was  not,  at  the  time  of  its  acquisition,  occupied 
by  an  organized  and  civilized  community;  where,  in  fact,  the 
j)opulation  of  the  new  state,  upon  the  establishment  of  govern- 
ment, was  formed  by  emigration  from  the  original  states.  As 
in  British  colonies,  established  in  uncultivated  regions  by  emi- 
gration from  the  parent  country,  the  subjects  are  considered 
as  carrying  with  them  the  common  law,  so  far  as  it  is  aj^pli- 
cable  to  their  new  situation,  so,  when  American  citizens  emi- 
grate into  territory  which  is  unoccupied  by  civilized  man,  and 
commence  the  formation  of  a  new  government,  they  are 
equally  considered  as  carrying  with  them  so  much  of  the  same 
common  law,  in  its  modified  and  imjjroved  condition,  under 
the  influence  of  modern  civilization  and  republican  principles, 
as  is  suited  to  their  new  condition  and  wants.  But  no  such 
presumption  can  apply  to  states  in  which  a  government  already 
existed  at  the  time  of  their  accession  to  the  country,  as  Flor- 
ida, Louisiana  and  Texas.  They  had  already  laws  of  their 
own,  which  remained  in  force  until  by  the  proper  authority 
they  were  abrogated,  and  new  laws  were  promulgated.  With 
them  there  is  no  more  presumption  of  the  existence  of  the  com- 
mon law  than  of  any  other  law.    They  were  independent  of  the 


0()(3  THE    COMMON.  LAW. 

Eii^'lish  liiw  iu  their  origin,  and  hence  no  presumption  of  the 
existence  of  the  common  hiw  of  England  can  be  indulged.  In 
countries  conquered  and  ceded  to  England  the  common  law 
has  no  authorit}'  without  positive  enactment,  and  for  the  same 
reason  that  they  were  not  part  of  the  mother  country,  but  dis- 
tinct dominions.     1  Black.  107;  1  Story  on  Const.  150. 

"As  Texas  was  an  independent  country  at  the  time  of  its 
accession  to  the  United  States,  having  laws  of  its  own,  not 
being  carved  out  of  the  ancient  colonial  provinces  of  England, 
like  the  original  thirteen  states,  or  formed  by  immigration 
into  an  uncultivated  country  from  those  states,*  but  from  a 
Mexican  province  by  a  successful  revolution  against  the  re- 
public of  Mexico,  no  presumption  can  arise  of  the  existence 
therein  of  the  common  law,  which  is  the  basis  of  the  jurispru- 
dence of  the  other  states. 

"The  question  then  recurs  as  to  what  is  presumed  as  to  the 
law  of  Texas,  in  the  absence  of  any  proof  on  the  subject.  We 
can  perceive  only  one  way  in  which  the  question  can  be 
answered,  and  that  is  to  presume  the  law  of  that  state  to  be 
in  accordance  with  our  own.  We  are  called  upon  to  deter- 
mine the  matter  in  controversy,  and  are  not  at  liberty  to  follow 
our  own  arbitrary  notions  of  justice.  We  cannot  take  judi- 
cial notice  of  the  laws  of  Texas,  and  we  must,  therefore,  as  a 
matter  of  necessity,  look  to  our  own  laws  as  furnishing  the 
only  rule  of  decision  upon  which  we  can  act ;  and,  to  meet  the 
requirement  that  the  case  is  to  be  disposed  of  according  to  the 
laws  of  Texas,  the  presumption  is  indulged  that  the  laws  of 
the  two  states  are  in  accordance  with  each  other.  The 
authorities,  with  some  exceptions,  are  to  this  effect. "(/') 

This  reasoning  appears  sound,  so  far  as  it  is  applicable. 
Nor  is  it  necessarily  contradicted  by  the  principle  that  terri- 
tory acquired  must  be  held  according  to  the  constitution  and 
laws  of  the  nation  acquiring  it,  and  not  according  to  those  of 

*But  Texas  was  mainly  settled  at  (/)Xoiris  v.  Harris,  1.5  Cal.  2.')2, 

first  by  emigration  from  the  United  citing  Smoot  v.  Baldwin,  1  Martin, 

States,  which  fact,  it  seems,  ought  N.  S.  (La.)  523;    Allen  v.  Watson, 

to  support  the  ordinary  presurap-  2  Hill,  (S.  C.)  319  ;  Monroe  «.  Doug- 

tion,  according  to  the  above  reason-  lass,  1  Selden,  (N.  Y.)  452;  Castle- 

ing  of  the  court.  man  «.  Jeffries,  60  Ala.  381. 


THE    COMMON    LAW.  *"         207 

the  government  by  which  it  is  ceded  ;(^)  since,  as  we  shall  see 
hereafter,  the  United  States  government  merely  recognizes 
the  common  law  as  it  exists  in  the  individual  states. 

The  principle,  then,  is,  that  on  a  common  law  question  the 
presumption  obtains,  in  the  absence  of  j)roof  to  the  contrary, 
that  the  common  law  is  in  force  in  a  sister  state.  The  excep- 
tion is,  a  settled  and  organized  territory  acquired  by  the 
United  States  from  a  foreign  power. 

§  200.  The  modifications  of  the  common  law,  as  it  exists 
among  us,  arise  from  three  sources  :  (1)  The  circumstances  of 
the  territory  adopting  it ;  (2)  English  statutes ;  (3)  domestic 
statutes.  The  first  of  these  we  have  already  alluded  to,  inci- 
dentally. But  we  may  remark  further  upon  it  that  the  modi- 
fying circumstances  are  such  as  render  the  common  law  inap- 
plicable to  the  actual  situation,  or  repugnant  to  other  rights 
and  privileges,  of  the  residents  of  the  locality. (/i)  This  is  a 
matter  resting  largely  in  the  discretion  of  a  court  applying  the 
rules,  and  is,  therefore,  somewhat  indefinite,  and  proportion- 
tionately  dangerous.  For,  as  the  supreme  court  of  Pennsyl- 
vania has  justly  observed:  "We  should  have  a  motley  sys- 
tem of  patchwork,  indeed,  if  the  principles  of  the  law  were  to  be 
wrested  or  bent  to  obviate  every  inconvenience  that  may  be  felt 
in  a  single  case,  or  even  in  a  few  cases.  Even  courts  of  equity 
are  governed  by  general  rules,  which  are  sometimes  inadequate 
to  the  doing  of  exact  justice  in  particular  cases.  There  can 
be  no  rule  for  the  application  of  the  argument  ahinconvenientl, 
but  every  court  must,  in  that  respect,  be  governed  by  a  sound 
discretion  on  a  view  of  the  whole  ground,  "(i)  As  a  safeguard, 
then,  it  is  needful  to  keep  in  sight  what  it  is  in  which  the 
common  law  system  consists.  In  a  case  before  the  court  of 
errors,  in  New  York,  Spencer,  senator,  remarked:  "I  admire 
that  principle  of  flexibility  in  the  common  law  which  enables 
it  to  be  adapted  to  the  ever  varying  condition  of  human 
society;  and  it  is,  in  that  respect,  unquestionably  sujierior 
to    any  written    code.      Bat  I  understand  that  flexibility  to 

((7)Po]lanrs    [jcssce   v.   Hagnn,    3  (''irA'le  v.  Uiclianls,  <J  '^vrg,.  &  \i. 

How.  (U.  S.)  212").  ;j5i. 

(A)To\vn  V.  Clai-k,  i)  Crancli,  ."J.'j.'j. 


208  THE  coiniON  law. 

ciinsist,  not  in  the  cliauge  of  great  and  essential  priuc-iples, 
but  in  the  application  of  old  principles  to  new  cases,  and  in 
the  moditication  of  the  rules  flowing  from  them  to  such  cases 
as  they  arise,  so  as  to  preserve  the  reason  of  the  rules  and 

the  spirit  of  the  law. ''(./) 

Hence,  it  is  not  a  loose  system,  to  be  employed  at  will,  but 
is  as  binding  when  once  established  as  is  a  statute  law. 
"Whenever  a  principle  of  the  common  law,"  say  the  Mis- 
sissippi court,  ''has  been  once  clearly  and  unquestionably 
recognized  and  established,  the  courts  of  the  country  must 
enforce  it,  unless  it  be  repealed  by  the  legislature,  as  long  as 
there  is  a  subject  matter  for  the  principle  to  operate  on ;  and 
tills,  too,  altliough  the  reason,  in  the  opinion  of  the  court, 
which  induced  its  original  establishment  may  have  ceased  to 
exist.  This  we  conceive  to  be  the  established  doctrine  of  the 
courts  of  this  country  in  every  state  where  the  princij)les  of 
the  common  law  prevail.  Were  it  otherwise,  the  rules  of  law 
would  be  fluctuating  and  unsettled  as  the  opinions  of  the  dif- 
ferent judges  administering  them  might  happen  to  differ  in 
relation  to  the  existence  of  sufficient  and  valid  reasons  for 
maintaining  and  upholding  tliem,"(/i) 

§  201.  The  chief  distinction  is  between  the  i^rincijiles  and 
the  rules  resulting  from  them — the  former  being  held  immut- 
able, unless  especially  repealed,  but  the  latter  subject  to  cir- 
cumstantial modification.  On  this  the  supreme  court  of  New 
York  remark:  "The  common  law  consists  of  those  princi- 
ples and  maxims,  usages  and  rules  of  action  which  observa- 
tion and  experience  of  the  nature  of  man,  the  constitution  of 
society,  and  the  affairs  of  life  have  commended  to  enlight- 
ened reason  as  best  calculated  for  the  government  and  se- 
curity of  persons  and  property.  Its  principles  are  developed 
by  judicial  decisions  as  necessities  arise,  from  time  to  time, 
demanding  the  application  of  those  principles  to  particular 
cases  in  the  administration  of  justice.  The  authority  of  its 
rules  does  not  depend  upon  positive  legislative  enactment, 
but  upon  the  principles  which  they  are  designed  to  enforce, 

( j)Kenss.  Glass  Factory  v.  Iteid,  (A) Powell  v.   Brandon,  2-4  Miss. 

5  Cow.  628.  363. 


THE    COMMON   LAW.  209 

the  nature  of  the  subject  to  which  they  are  to  be  applied, 
anl  their  tendency  to  accomplish  the  ends  of  justice.  It 
follows  that  these  rules  are  not  arbitrary  in  their  natuie,  nor 
invariable  in  their  ajDplication ;  but  from  their  nature,  as  well 
as  the  necessities  in  which  they  originate,  they  are  and  must 
be  susceptible  of  a  modified  application  suited  to  the  circum- 
stances under  which  that  application  is  to  be  made. 

"The  principles  of  the  common  law,  as  its  theory  assumes 
and  its  history  proves,  are  not  exclusively  apjjlicable  or  suited 
to  one  country  or  condition  of  society ;  but,  on  the  contrary, 
by  reason  of  their  properties  of  expansibility  and  flexibility 
their  application  to  many  is  practicable.  The  adoption  of 
that  law,  in  the  most  general  terms,  by  the  government  of 
any  country,  would  not  necessarily  require  or  admit  of  an 
unqualified  application  of  all  its  rules,  without  regard  to  local 
circumstances,  however  well  settled  and  generally  received 
those  rules  might  be. 

"Its  rules  are  modified  upon  its  own  principles,  and  not  in 
violation  of  them.  Those  rules  being  founded  in  reason,  one 
of  its  oldest  maxims  is  that  where  the  reason  of  the  rule 
ceases  the  rule  also  ceases.  *  *  *  This  apparently  quali- 
fied adoption  of  the  common  law  is,  after  all,  nothing  more 
nor  less  than  an  adoption  of  its  essential  p^-'mcijyles,  the  ap- 
plication of  which  to  our  circumstances  would  result  in  a 
modification  or  entire  change  of  some  of  its  rules,  which  are 
nothing  more  than  the  result  of  the  application  of  general 
principles  to  particular  facts.  The  i^rinclplc  is  essentially 
the  same,  under  ail  circumstances,  but  the  rule  or  result  of 
its  application  will  vary  with  the  facts  to  which  it  is  applied, 
or  the  conditions  under  which  the  application  is  made."(/) 

§  202.  But  whether  there  is  any  standard  to  estimate  the 
applicability,  or  otherwise,  of  the  common  law  rules  may  be 
an  important  practical  inquiry.  In  a  case  before  the  Illinois 
supreme  court,  Caton,  J.,  in  a  dissentii^  opinion,  asks : 
"What  did  the  legislature  mean  by  the  use  of  the  word  'ap- 
plicable?' Applicable  to  the  nature  of  our  political  institu- 
tions, and  to  the  genius  of  our  republican  forms  of  govern- 

{IjVi-oplii  V.  Kaudolpli,  2  Park  Crirn.  li.  17G,  176,  passim. 
v.l— 14 


o^O  JHE    COMMON    LAW. 

meat,  and  to  our  constitution,  or  to  our  domestic  habits,  our 
wants,  and  our  necessities  ?  I  tliink  I  must  ever  be  of  opin- 
ion that  nothing  but  the  former  was  meant,  and  that  to  adopt 
the  hitter  is  a  clear  usurpation  of  legislative  power  by  the 
courts. "(»i)  And  he  proceeds  to  fortify  this  position,  quite 
ably,  by  the  argument  that  the  former  is  a  certain  and  gen- 
eral standard,  the  latter  variable  and  local.  The  majority  of 
the  court,  in  that  case,  held  that  "in  adopting  the  common  law 
it  must  be  applicable  to  the  habits  and  condition  of  our  soci- 
ety, and  in  harmony  with  the  genius,  spirit  and  objects  of  our 
institutions;"  thus  blending  together  what  Justice  Caton 
thought  should  be  kept  separate  as  incompatible  grounds. 
In  viewing  his  dissenting  opinion,  in  this  particular,  the  Iowa 
court  respond:  "There  would  seem  to  be  much  propriety  in 
saying  that  the  distinction  attempted  is  more  speculative  than 
practical  or  real;  for  what  is  applicable  to  our  wants,  hab- 
its, and  necessities  as  a  community,  or  state,  must,  necessa- 
rily, to  some  extent,  be  determined  from  the  nature  and 
genius  of  our  government  and  institutions.  Or,  in  other 
words,  to  determine  whether  a  particular  principle  harmo- 
nizes with  the  spirit  of  our  institutions,  we  must  look  to  the 
habits  and  condition  of  the  society  which  has  created  and 
lives  under  these  institutions.  We  have  adoj)ted  a  repub- 
lican form  of  government  because  we  believe  it  to  be  better 
suited  to  our  condition,  as  it  is  to  that  of  all. people,*  and 
thereunder  we  believe  our  wants,  rights,  and  necessities,  as 
individuals  and  as  a  community,  are  more  likely  to  be  pro- 
tected and  provided  for.  And  the  conclusion  would  seem  to 
fairly  follow  that  a  principle  or  rule  which  tends  to  provide 
for  and  protect  our  rights  and  wants  would  harmonize  with 
that  form  of  government,  or  those  institutions  which  have 
grown  up  under  it.  But,  however  this  may  be,  we  do  not  be- 
lieve that,  in  determining  as  a  court  whether  a  particular 
rule  of  the  unwritten  law  is  applicable,  we  are  confined  alone 
to  its  agreement  or  disagreement  with  our  peculiar  form  of 
government.  "(/<) 

(m)Seeley».  Peters,  5  Gil.  149.  (?i)Wagner  «.   Bissell,  3  Clarke, 

*Frunte,  Spain,  or  J\k-xico?  402. 


THE    COMMON    LAW.  211 

And  so,  "when  it  is  said  that  we  have  in  this  country 
adopted  the  common  law  of  England,  it  is  not  meant  that  we 
have  adopted  any  mere  formal  rules,  or  any  written  code,  or 
the  mere  verbiage  in  which  the  common  law  is  expressed.  It  is 
aptly  termed  the  unwritten  law  of  England,  and  we  have  adoj)ted 
it  as  a  constantly  improving  science,  rather  than  as  an  art ;  as 
a  system  of  legal  logic,  rather  than  as  a  code  of  rules.  In  short, 
in  adopting  the  common  law,  we  have  adopted  its  funda- 
mental principles,  and  modes  of  reasoning,  and  substance  of 
its  rales,  as  illustrated  by  the  reasons  on  which  they  are 
based,  rather  than  by  the  mere  words  in  which  they  are 
expressed,  "(o) 

§  203.  In  general,  the  common  law  of  this  country  is  that 
of  England,  as  amended  or  altered  by  English  statutes  prior 
to  the  revolution, (/:))  with  some  variation  as  to  the  date;  some 
holding  it  as  it  was  on  the  nineteenth  of  April,  1775,((/) 
others  on  July  4,  1776, (r)  and  others  ^till  confining  the  modi- 
fications by  constitutional  provision  to  the  statutes  passed 
prior  to  the  fourth  year  of  James  I.(s)  Those  passed  before 
the  first  emigration  to  America  are,  of  course,  a  part  of  the 
common  law  in  all  the  states. (f)  This,  however,  is  also  sub- 
ject to  the  principle  of  modification  by  circumstances  varying 
their  applicability. 

§  204.  It  may  not  be  amiss,  by  way  of  illustration,  to  give 
a  few  examples  of  such  modification  by  circumstances.  In 
an  early  case  in  Vermont,  (1827,)  the  question  of  water  privi- 
lege was  involved,  and  the  court  say:  "The  common  law  of 
England  seems  to  be  that  each  land-owner,  through  whose 
land  a  stream  of  water  flows,  has  a  right  to  the  water  in  its 
natural  course,  and  any  diversion  of  the  same  to  his  injury 
gives  him  a  right  of  action.  He  must  have  previously  appro- 
priated it  to  some  use  before  he  can  be  said  to  sustain  any 
damage.     If  this  common  law  is  to  govern,  it  supports  the 

(o)Mors.an  v.  King,  30  Barb.  14.  (r)Hamilton  v.  Kneeland,  1  Nev. 

(?9)C'obuni  e.  Ilanely,  18  Wis.  147.  56,  and  authorities  there  cited. 
(7)People    ».  Randolph,  2    Park  (s)Seeley  «.  Peters,  5  Gil.  148. 

C.  R.  176.  (<) Carter  v.  Adm'r,  19  Ala.  829. 


0|2  THE    COMMON    LAW. 

defoiulant  in  his  defence.  But  the  court  consider  it  not  ap- 
plicable to  our  circumstances,  and  not  of  binding  force  here. 
There  must  have  been  a  time  when  it  was  not  applicable,  so 
as  to  do  justice  in  all  cases,  in  England.  Should  this  prin- 
ciple be  adopted  here,  its  effect  would  be  to  let  the  man  who 
should  first  erect  mills  upon  a  small  river,  or  brook,  control 
the  whole,  and  defeat  all  the  mill  privileges  from  his  mills  to 
the  source. "(if) 

In  Georgia,  (in  1822,)  it  was  held  that  the  common  law 
rule,  requiring  proof  of  the  signatures  in  a  prosecution  for 
forgery,  was  inapplicable  to  the  forgery  of  a  bank  note.(t;) 

In  Ohio,  the  ancient  common  law  conveyances,  resting  on 
parol  proof,  are  held  altogether  invalid  on  account  of  "the 
policy  of  law,  the  custom  of  the  country,  the  danger  of  per- 
jury, and  the  many  inconveniences  that  must  necessarily 
result  from  the  establishment  of  such  a  principle. "(i^-) 

In  Illinois  it  has  been  determined  that  the  common  law 
rule,  requiring  every  man  to  enclose  his  cattle  to  prevent  them 
ranging  upon  land  owned  by  others,  is  inapj)licable  to  a 
newly  settled,  open  country. (a;)  And  the  same  principle  is 
recognized  by  the  supreme  court  of  the  United  States  as  to 
matters  between  lahdlord  and  tenant. (^) 

§  205.  The  common  law,  as  adopted,  is  not  modified  by 
implication  from  a  statute ;(^)  and  hence  questions  of  prop- 
erty, unless  clearly  excepted,  must  be  determined  by  it;(a) 
but,  by  positive  enactment,  it  may  be  repealed  to  any  extent, 
unless  where  such  repeal  is  prohibited  by  the  constitution  in 
express  terms.  (6) 

§  206.  When  a  statute  merely  gives  a  new  remedy,  where 
one  existed  before  at  the  common  law,  it  is  to  be  regarded  as 
cumulative,  so  that  the  party  may  pursue  the  one  or  the  other 

(u)Martm  i-.  Bigelow,  2  Aik.  187.  (2) Goodwint). Thompson, 2 Greene 

(«)State  V.  Calvin,  Charlt.  172.  (la.)  333. 

(wjLindsley's  Lessee  c.   Coats,  1  (o)Lorman    v.   Benson,    8  Mich. 

Ham.  243.  25. 

(jjSeeley  v.  Peters,  f>  Gil.  142.  (5)Noonan   v.   State,   1   S.    &  M. 

(y)Vau  Ness  v.  Packard,  2  Pet.  (Miss.)  573;  Dawson   v.   Shaver,  1 

144.  Blackf.  205. 


THE    COMMON    LAW.  213 

at  discretion.  If  it  gives  the  same  remedy,  it  is  merely  con- 
firmatory. But  if  it  denies  or  positively  withholds  the  com- 
mon law  remedy,  this  is  a  repeal. (c) 

§  207.  There  is  no  common  law  of  the  United  States,  as 
contradistinguished  from  the  common  law  of  the  individual 
states;  which  arises,  however,  from  the  fact  that  the  United 
States  circuit  and  district  courts,  instead  of  administering 
this  or  any  particular  system,  conform  to  the  law  of  the'  states 
where  they  are  situated — at  any  rate  in  civil  matters. (<l) 
However,  in  the  District  of  Columbia,  the  common  law  pre- 
vails as  in  the  states  by  which  it  was  ceded. (e) 

§  208.  As  to  what  is,  in  general,  included  within  the  com- 
mon law,  resort  must,  of  course,  be  had  to  English  and  Ameri- 
can reports  of  decisions  by  the  courts.  But  trial  by  jury  is 
regarded  as  the  leading  distinctive  peculiarity  of  the  com- 
mon law  system.  (/) 

It  is  a  general  rule  that  all  the  statutes  for  the  administra- 
tion of  justice  by  which  the  common  law  proceedings  were 
regulated,  up  to  the  time  of  the  adoption  of  the  system  by  the 
colonies,  were  included  in  the  sj^stem  so  far  as  they  were 
applicable. ((/)  The  lex  mercatoria,  or  law  merchant,  consti- 
tutes a  part  of  it,  I  believe,  in  all  the  states  where  the  system 
prevails.  This,  indeed,  was  not  a  peculiarity  of  the  common 
law  of  England,  but  was  of  a  general  nature,  not  local  to  the 
kingdom,  but  recognized  and  enforced  by  its  courts  as  of 
universal  use  and  application  in  all  mercantile  transactions 
throughout  the  commercial  world;  being  a  rule  of  decision  to 
all  nations  and  courts,  (/<)  so  that  it  was  a  part  of  the  common 
law  of  England  by  adoption;  but  this  did  not  hinder  its  re- 
adoption  here.  Say  the  supreme  court  of  Illinois  :  "Were 
we  now  to  strike  from  the  common  law  all  it  has  borrowed 
from  the  law  merchant,  we  should  find  it  unfitted  for  the 
most  rural    districts    of   this    country;    for    agriculture   has 

(<;)Gooch    V.   Stevenson,    13   Me.  (/)KeyDolds     «.    Steamboat,    10 

376.  Minn.  249. 

(d)People  V.  Folsom,  f,  Cal.  379.  (.'ZlSibley  v.  Williams,  3  Gill.  &  J. 

(e) State  V.   Cunimings,  33  Conn.  62. 

^64,  and  cases  cited.  (7i)Piatt  v.  Eads,  1  Blackf.  82. 


0|.j^  THE    COMMON    LAW. 

become  so  intimately  comiectecl  and  associated  with  commerce 
that  the  rules  which  govern  one  must  seriously  aflfect  the 
other.  With  all  its  avenues  of  intercommunication,  com- 
merce now  extends  itself  to  the  granaries  and  pasture  fields 
of  the  remotest  frcmtiers.  Thus  dismembered,  the  common 
law  would  only  lie  a  fit  code  for  the  government  of  a  fox- 
lumting  gentry,  and  their  dependent  serfs.  While  elementary 
writers,  and  tlie  judges  of  courts,  have  been  in  the  habit  of 
speaking  of  the  lex  mercatorla  distinctively,  they  have,  for  a 
very  long  time,  spoken  of  it  and  treated  it  as  a  part  of  the 
common  law;"  and,  therefore,  in  the  same  case,  they  held 
that  days  of  grace  were  attached  to  all  bills  of  exchange.  (?) 

It  appears  singular  that  in  this  country  there  should  ever 
have  been  a  plea  preferred  for  the  benefit  of  clergy.  But,  as 
late  as  1859,  the  Minnesota  court  was  called  upon  for  a 
decision  concerning  such  a  plea.  The  court  responded,  how- 
ever, in  this  discouraging  style:  "'This  plea  has  never  had 
any  practical  operation  in  the  United  States,  and  had  it,  in 
the  absence  of  any  statutory  provision,  been  claimed  as  a 
common  law  right,  in  any  state,  it  would  have  been  denied,  "(j) 
And,  in  another  case,  where  the  benefit  of  clergy  was  claimed, 
in  Indiana,  the  court  was  so  uncomplimentary  as  even  to  be 
unwilling  to  admit  that  it  ever  had  been  a  common  law  priv- 
ilege, and  as  to  declare  that  "it  originated  with  that  (privilege) 
of  sanctuary  in  the  gloomy  times  of  popery;  it  was  the  off- 
spring of  that  absurd  and  superstitious  veneration  for  a 
privileged  order  in  society,  which  unfortunately  existed  in 
those  ages  of  darkness,  when  the  persons  of  clergymen  were 
considered  sacred,  and  church-yards  were  viewed  as  conse- 
crated ground.  The  statutes  of  England  on  the  subject  are 
local  to  that  kingdom.  They  were  not  made  in  aid  of  the 
common  law,  and  are  certainly  not  adopted  as  the  laws  of  our 
country,  "(/t) 

Yet,  in  Virginia,  it  has  been  held,  the  common  law  concern- 
ing ecclesiastical  property  vesting  in  the  clergy  was  adopted 
and  continued,  notwithstanding  the  revolution  and  the  subse- 

(i)Cook  V.  Renick,  19  111.  602.  (/.jFuller  v.  Slate,  1  Blackf.  66,  67. 

(j)  St  ale  i\  Bilausky,  3  Miuu.  255. 


THE    COMMON    LAW.  215 

quent;  constitutional  provision  in  the  state  on  the  subject  of 
religious  freedom.  (?)  And  it  is  decided,  also,  in  Vermont, 
that  the  ecclesiastical  laws  of  England,  and  the  powers  of 
ecclesiastical  courts  thereunder,  as,  for  example,  in  matters 
of  divorce,  were  adopted  in  that  state  as  a  part  of  the  common 
law.  The  court  say:  "The  adoption  of  the  common  law  of 
England  by  the  legislature  of  the  state  was  an  adoption  of  the 
whole  body  of  the  law  of  that  country,  aside  from  tlieir  parlia- 
mentary legislation,  and  included  those  principles  of  law 
administered  by  the  courts  of  chancery  and  admiralty,  and 
the  ecclesiastical  courts,  so  far  as  the  same  were  applicable 
to  our  local  situation  and  circumstances,  and  not  repugnant  to 
our  constitution  and  laws,  as  well  as  that  portion  of  their  laws 
administered  by  the  ordinary  and  common  tribunals.  As  the 
jurisdiction  in  England  was  exclusively  committed  to  the  spir- 
itual courts,  and  had  never  been  exercised  by  the  ordinary  law 
courts,  the  same  could  not  be  exercised  by  the  courts  of  law 
in  this  country  until  it  was  vested  in  them  by  the  law-making 
power.  As  we  have  never  had  any  ecclesiastical  courts  in 
this  country  which  could  execute  this  branch  of  the  law,  it 
was  in  abeyance  until  some  tribunal  was  properly  clothed  with 
jurisdiction  over  it,  or  rested  in  the  legislature.  It  was  prob- 
ably on  this  ground  that  the  legislatures  of  the  states  pro- 
ceeded in  granting  divorces,  as  manj^  of  them  did  in  former 
times.  When  the  legislature  establishes  a  tribunal  to  exercise 
this  jurisdiction,  or  invests  it  in  any  of  the  already  established 
courts,  such  tribunal  becomes  entitled  and  it  is  their  duty  to 
exercise  it  according  to  the  general  principles  of  the  common 
law  of  the  subject  and  the  practice  of  the  English  courts,  so 
far  as  thej"  are  suited  to  our  condition  and  the  general  spirit 
of  our  laws,  or  are  modified  or  limited  by  our  statute. "(w) 

As  with  chancery  courts,  so  likewise  with  courts  of  admi- 
ralty, the  courts  of  common  law  may  have  concurrent  juris- 
diction; and,  in  such  a  case,  if  the  parties  seek  the  remedy 
provided  by  the  common  law,  they  are  considered  as  submit- 
ting voluntarily  to  the  legal   principles  and  modes  of   pro- 

(i)Terrett  v.  Taylor,  9  Cranch,  (U.  (ih)Lg  Barron  v.  Le  Barron,  35  Vt. 

S.)  45,  3G7. 


0](J  THE    COMMON    LAW. 

eedure  prevailing  in  Common  law  courts.  And  thus,  in  such 
courts,  rules  of  navigation  and  customs  of  the  sea  are  not 
regarded  as  of  positive  authority,  and  one  electing  to  proceed 
therein  cannot  adduce  such  rules  and  customs  as  binding  in 
themselves.  (/?) 

§  '20d.  The  want  of  early  precedents  in  this  country,  oh 
any  particular  matter,  is  not  held  conclusive  as  against  the 
fact  of  the  adoption  of  the  common  law  on  that  subject  by 
the  colony  or  state.  Where  this  was  claimed  otherwise,  in 
a  case  in  Massachusetts,  in  regard  to  waste  by  tenants,  the 
court  said :  "If  the  foregoing  be  a  true  enumeration  of  the 
materials  which  compose  the  common  law,  by  which  our 
ancestors,  under  their  colonial  institutions,  were  governed, 
then  it  is  very  clear  that  the  action  of  waste  was  the  same, 
and  had  the  same  consequences,  with  them  as  it  had  in  Eng- 
land under  the  statute  of  Gloucester,  namely,  forfeiture  of 
the  place  wasted,  and  treble  damages.  Nor  does  it  in  any 
way  affect  the  argument  that  no  instance  can  be  produced  of 
such  an  action  from  the  records,  for  it  is  known  that  the  colo- 
nial records  were  but  imperfectly  preserved,  and  it  may  be 
that  no  occasion  for  the  use  of  that  action  occurred  in  those 
times  of  simplicity  and  of  crude  administration  of  law,  espe- 
cially in  regard  to  real  property,  which  had  hardly  begun  to 
be  of  value.  Without  doubt  many  principles  of  the  common 
law  have  been  brought  into  view  and  applied  in  later  times 
which,  in  the  early  period  of  our  history,  there  was  no  occa- 
sion to  use,  as  well  as  many  forms  of  action  which,  though 
now  necessary,  were  then  of  no  practical  value.  But  the 
common  law  existing  then  as  it  does  now,  its  copious  foun- 
tain was  resorted  to  for  relief  as  the  exigencies  of  the  rapidly 
increasing  community  required. "(o) 

§  210.  The  statutes  of  3  Edw.  VI.  c.  4,  and  13  Eliz.  c.  6, 
whereby  patentees,  and  all  claiming  under  them,  were  allowed 
to  give  in  evidence  exemplificatiom  of  public  grants  under  the 
great  seal,  instead  of  producing  the  original  patent  itself,  are 
held  to  be  a  part  of  our  common  law,  being  passed  before  the 

(/OSiiwyer  v.    iSteambout   Co.    46  (c>)Sackett  v.  ISackett,  8  Pick.  317. 

Me.  404. 


THE    COMMON    LAW.  217 

emigration  of  our  ancestors,  and,  moreover,  being  "a  recog- 
nition, in  the  most  solemn  form,  by  the  government  itself,  of 
the  validity  of  its  own  grant  under  its  own  seal,  and  there- 
fore importing  absolute  verity  as  matter  of  record. "(2>) 

Also  the  statute  of  8  and  9  William  III.  c.  11,  §  7,  allowing 
a  survivor  in  an  action  of  trespass  to  continue  the  suit,  being 
in  amendment  of  the  common  law,  as  were  the  above  men- 
tioned statutes,  is  probably  a  part  of  our  common  law,  al- 
though this  has  been  rather  loosely  held  in  Massachu setts, ((/) 

Also  the  statutes  of  Edw.  III.  c.  1,  defining  the  jurisdic- 
tion and  powers  of  justices  of  the  peace,  are  part  of  our  com- 
mon law.(_?') 

And,  in  New  York,  the  statute  of  G  Anne,  c.  3,  as  amended 
prior  to  April  19,  1775,  by  14  George  III.,  providing  that  there 
shall  be  no  liability  for  damage  done  by  an  accidental  fire, 
is  part  of  the  common  law  of  that  state. (s) 

§  211.  The  process  of  attachment  does  not  belong  to  the 
common  law  as  to  foreigners.  "The  process  of  the  common 
law  could  not  reach  foreign  coriDorations,  for  the  plain  reason 
that  they  were  not  inhabitants  of  the  realm,  and  had  no  cor- 
porate existence  within  it.  This  was  equally  true  in  respect 
to  natural  persons  not  inhabitants  of  the  realm,  and  not 
found  within  it.  Foreigners  who  were  non-residents  could 
not  be  served  witli  process  to  af)i3ear  in  any  of  the  courts  of 
■common  law,  nor  could  their  property  be  attached  to  compel 
their  appearance.  Whenever  and  wherever,  in  any  such 
•cases,  process  can  be  served  upon  the  property  either  of  for- 
eign corporations  or  of  foreign  natural  i^ersons  who  are  non- 
residents, the  authority  to  do  so  results  either  from  special 
■custom,  or  from  statute  provisions" (^) — indeed,  almost  exclu- 
sively from  the  latter. 

Neither  are  matters  of  impeachment  by  a  legislature,  or 
senate  rather,  within  any  rules  of  the  common  law,  so  far  as 
the  organization  of  the  court  is  concerned,  since  there  is  so 

(p)Satterson  v.  Winn,  5  Pet.  (U.  (r)Comnioiiwc:i]tli     v.    Leach,    1 

S.)  240.  Mass.' ")'.». 

(gjJioynlon  v.  Kees,  !)  Pick.  532.  (.'*)[jansing  ».  IStone,  37  Barb.  17. 

(^Clarke  v.  Nav.  Co.  1  Slory  C.  C.  538. 


0-(S  THE    COMMON    LAW. 

little  resemblance  to  the  British  j^arliament  in  our  legislative 
jissemblies.  Yet,  as  to  proceedings,  the  nature  of  the  duties 
imposed,  and,  in  a  degree,  the  limits  of  the  powers  of  such 
court,  the  common  law  principles  may  be  an  effective  guide. («) 
Yet,  in  no  case,  can  any  court  of  impeachment  claim  the  full 
extent  of  the  powers  of  parliament ;  so  that,  in  this  regard, 
the  restrictions  only  upon  those  powers  are  to  be  regarded  as 
authoritative. 

§  212.  In  regard  to  remedies,  merely,  the  United  States 
courts  are  to  be  regarded  as  having  a  kind  of  distinct  common 
law  jurisdiction,  so  that,  in  these,  they  do  not  conform  to  the 
practice  of  state  courts,  but  to  the  principles  of  common  law 
and  equity  defined  in  England,  (r) 

§  213.  As  to  offences  and  crimes  at  common  law  there  is 
quite  a  variance  in  the  different  states.  As,  for  example,  in 
Indiana,  there  are  no  common  law  offences ;  but  crimes  and 
misdemeanors  must  be  defined  by  statutes  prescribing  a  defi- 
nite punishment,  or  they  are  not  punishable.  (?r)  But,  for- 
merly, the  opposite  was  held  to  be  the  case. (a;)  It  is  so,  like- 
wise, in  Ohio.  And,  in  Iowa,  it  has  been  held  that  sodomy, 
however  abhorrent  in  its  nature,  was  not  a  punishable  crime 
because  of  the  absence  of  statutory  definition;  although  the 
court  sa}^ :  "It  would  be  a  most  difficult  matter  to  administer 
criminal  justice  under  our  code  of  procedure,  without  the  aid 
of  common  law,  in  the  light  of  which  statutory  crimes  are  to 
be  interpreted,  and  their  definitions,  if  defective,  to  be  ex- 
pounded and  explained.  While,  therefore,  the  principles  of 
the  common  law  do  enter  into  all  our  criminal  adjudications, 
when  the  jurisdiction  of  our  courts  over  criminal  offences  has 
been  established  by  law,  still  they  do  not  confer  upon  the 
courts,  in  this  state,  the  power  to  try  and  punish  an  offence 
that  is  such  at  common  law,  but  which  has  not  been  ordained 
as  such  by  the  supreme  law-making  power  of  the  state. "(?/) 

But  in  most  of  the  states  the  criminal  common  law  has 


26. 


(M)State  ex  rd.  v.  Hillyer,  2  Kan.  (?f) Hackney  «.  State,  8  Ind.  405. 

{.r)FulleK  V.  State,  1   Rlackf.   fi5, 
(c) Robinson  v.  Campbell,  3  Wheat.       66  ;  State  «.  Bortheal.  6  Blackf.  474. 
22L  and  note.  (2/)Estes  c.  Carter,  10  la.  401. 


THE    COMMON    LAW.  211> 

been  adopted  under  the  same  restrictions  and  limitations  as 
civil  actions  therein.  In  Maryland  even  the  law  of  conspiracy 
was  (in  1821)  held  to  have  been  adopted,  inasmuch  as  it  was 
suitable  as  well  to  the  circumstances  of  the  colonists  as  to  the 
state  of  society  in  England. (^)  In  Connecticut  the  matter 
was  quite  earnestl}'  contested  in  a  dissenting  opinion  by  Peters, 
J.,  against  the  majority,  consisting  of  four  judges,  who  on  their 
part  held,  very  reasonably,  I  think,  that  "it  is  indispensably 
necessary  that  there  should  exist  a  common  law,  on  the  broad 
principles  of  public  convenience  and  necessity,  defining  crimes 
and  prescribing  adequate  punishments.  To  determine,  by 
statute,  every  ofTence,  and  direct  the  punishment  which  shall 
be  inflicted,  has  not,  so  far  as  I  know,  ever  been  attempted, 
and  would  be  nearly  impracticable.  The  community  must, 
at  least,  be  left  exposed  to  injuries  the  most  atrocious,  and  the 
evils  resulting  would  be  much  greater  than  any  reasonable 
mind  will  anticipate  from  the  exercise  of  a  sound  discretion 
in  the  application  of  principles  and  analogies  which  the  com- 
mon law  sui3plies."(rt) 

But  Peters,  J.,  maintained  most  vigorously,  in  opposition, 
that  the  common  law  had  never  been  adopted  as  to  crimes, 
nor,  indeed,  even  the  civil  portion  of  it,  "I  have  sought 
in  vain,"  he  says,  "in  the  history  and  legislative  acts  of 
our  ancestors,  for  a  confirmation  of  this  doctrine.  But  it 
is  apparent  to  my  understanding  that  their  sole  object  was 
to  found  a  pure  government  in  church  and  commonwealth, 
'surely  bottomed  on  the  word  of  God;'  and  that  they  brought 
with  them  no  more  aft'ection  for  the  common  law  than  the 
canon  law,  the  court  of  star  chamber,  and  high  commission, 
from  which  they  fled  with  horror  and  detestation !  Accord- 
ingly, we  find,  in  the  first  page  of  their  statutes,  a  solemn 
provision  against  all  indefinite  laws  and  discretionary  pun- 
ishments, which  remained  for  substance  the  same  until  the 
adoption  of  the  constitution.  *****  in  this  state 
our  courts  seem   not  to  have  considered  the   common  law 

(3)State  V.  Buchauan,  5  Han.  &  J.  (a)State  v.  Danfortli,  3  Conn.  114. 

356. 


220  THE    COMMON    LAW. 

in  force  propno  vifjore,  but  the  judiciary  as  auxiliary  to  tlie 
legislature,  extending  the  written  law,  and  supplying  its 
defects.  ******  At  what  period  of  our  judicial 
history  our  courts  assumed  this  prerogative  of  the  aula  regis 
does  not  appear;  but  it  does  appear  that,  in  1743,  the  superior 
court  suspended  judgment  against  a  malefactor  convicted  of 
an  atrocious  mayhem,  which  was  felony  by  common  law, 
because  no  punishment  was  prescribed  by  statute,  and  peti- 
tioned the  legislature  for  direction.  *****  The 
common  law  may  be  extended  to  all  acts  contra  honos  mares, 
which  vary  with  climate,  and  the  education  and  habits  of  men. 
Thus,  in  some  countries,  to  kill  or  enslave  a  negro,  an  Indian, 
or  a  Christian,  is  an  atrocious  crime;  in  others,  a  mere  haft- 
atelle.  ******  It  is  said  the  exercise  of  this 
power  is  ne'cessary.  If  so,  statutes  are  unnecessary.  If  the 
judiciary  is  competent  to  adopt  statutes,  define  crimes,  and 
prescribe  punishments,  a  legislature  is  needless.  Whatever 
may  have  been  the  effect  of  constitutions  in  other  states  upon 
the  common  law,  many  of  which  have  adopted  it,  it  was  cer- 
tainly the  object  of  the  projectors  of  our  constitution  to 
separate,  define,  and  limit  the  constituent  powers  of  govern- 
ment. "(?>) 

As  to  the  United  States  courts  the  decisions  on  this  point 
have  denied  the  existence  of  a  common  law  cognizance  of 
crimes;  the  decisions,  however,  not  being  unanimous,  but  bj 
a  majority.  It  is  said:  "The  legislative  authority  of  the 
Union  must  first  make  an  act  a  crime,  affix  a  punishment  to 
it,  and  declare  the  court  that  shall  have  jurisdiction  of  the 
offence.  Certain  implied  powers  must  necessarily  result  to 
our  courts  of  justice  from  the  nature  of  their  institution.  But 
jurisdiction  of  crimes  against  the  state  is  not  among  those 
powers;  to  fine  for  contempt,  imprison  for  contumacy,  enforce 
the  observance  of  order,  etc.,  are  powers  which  cannot  be  dis- 
pensed with  in  a  court,  because  they  are  necessary  to  the  ex- 
ercise of  all  others;  and,  so  far,  our  courts,  no  doubt,  possess 
powers  not  immediately  derived  from  statute,  but  all  cogniz- 
(5)Pp.  lis,  120,  passim. 


THE    COMMON    LAW.  221 

ance  of  criminal  law  cases,  we  are  of  opinion,  is  not  within  their 
implied  powers. "(c)  This  was  in  1812;  but  in  1816  the 
court  was  not  united  on  it,  and  said:  "Upon  the  question 
now  before  the  court  a  difference  of  opinion  has  existed,  and 
still  exists,  among  the  members  of  the  court.  We  should, 
therefore,  have  been  willing  to  hear  the  question  discussed 
upon  solemn  argument.  But  the  attorjiey  general  has  de- 
clined to  argue  the  cause,  and  no  counsel  appears  for  the 
defendant.  Under  these  circumstances  the  court  would  not 
choose  to  review  their  former  decision,  in  the  case  of  the 
United  States  v.  Hudson  and  Goodwin,  or  draw  it  into 
doubt.  "(fZ) 

Justice  Story  has  declared  that,  in  his  judgment,  the  whole 
difficult}^  and  obscurity  on  the  subject  has  arisen  from  not 
keeping  in  view  the  distinction  given  above  in  the  language 
of  the  Iowa  court,  and  which  he  sets  forth  thus :  "I  admit,  in 
the  most  explicit  terms,  that  the  courts  of  the  United  States 
are  courts  of  limited  jurisdiction,  and  cannot  exercise  any 
authority  not  confided  to  them  by  the  constitution  and  laws 
made  in  pursuance  thereof.  But  I  do  contend  that,  when 
once  an  authority  is  lawfully  given,  the  natui'e  and  extent  of 
that  authority,  and  the  mode  in  which  it  shall  be  exercised, 
must  be  regulated  by  the  rules  of  the  common  law. 

"Whether  the  common  law  of  England,  in  its  broadest 
sense,  including  equity  and  admiralty,  as  well  as  legal  doc- 
trines, be  the  common  law  of  the  United  States,  or  not,  it  can 
hardly  be  doubted  that  the  constitution  and  laws  of  the  United 
States  are  predicated  upon  the  existence  of  the  common  law. 
This  has  not,  as  I  recollect,  been  denied  by  any  person  who 
has  maturely  weighed  the  subject,  and  will  abundantly  appear 
upon  the  slightest  examination.  The  constitution  of  the 
United  States,  for  instance,  provides  that  the  'trial  of  all 
crimes,  except  in  cases  of  impeachment,  shall  be  by  jury.'  I 
suppose  that  no  person  can  doubt  that,  for  the  explanation  of 
these  terms  and  for  the  mode  of  conducting  trials  by  jury, 
jjecourse  must   be  had   to  the  common  law.     So  the  clause 

(c)United  States  t>.  Hudsou  et  cU.  ((f)Unifed  States  v.    Coolidge,    1 

7  Crunch,  33.  Wheat.  415. 


2'22  THR    COMMON    LAW. 

tlijit  -the  judicial  i^ower  shall  extend  to  all  cases  in  law  and 
<?quity  arising  under  the  constitution,'  etc.,  is  inexplicable, 
without  reference  to  the  common  law;  and  the  extent  of  this 
power  must  be  measured  by  the  powers  of  courts  of  law  and 
equity,  as  exercised  and  established  by  that  system.  Innu- 
merable instances  of  a  like  nature  may  be  adduced.  I  will 
mention  but  one  more,  and  that  is  in  the  clause  providing 
that  the  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when,  in  cases  of  rebellion  or  invasion,  the 
public  safety  may  require  it.  What  is  the  writ  of  habeas  cor- 
j)u^!'  What  is  the  privilege  which  it  grants?  The  common 
law,  and  that  alone,  furnishes  the  true  answer.  The  existence, 
therefore,  of  the  common  law  is  not  only  suj)posed  by  the  con- 
stitution, but  it  is  appealed  to  for  the  construction  and  inter- 
pretation of  its  powers,  "(g) 

§  214.  Probably  the  ancient  doctrine  of  the  common  law, 
arising  from  the  feudal  system,  that  a  felony  merges  a  private 
wrong,  is  not  adopted  in  any  of  the  states. (/) 

((?)United    (States    t).  Coolidge,  1  (/)Plummer  v.  Webb,   1  Ware, 

<3all.  4S8.  (U.  S.)  77. 


EQUITY.  223 


CHAPTER  n. 

EQUITY. 

■j  215.  Basis  of  equity  jurisdiction. 

216.  Concurrent  juri.'jdiction. 

,   217.  Preventing  multiplicity  of  suits. 

218.  Equity  does  not  revise  legal  proceedings. 

219.  Nor  supplv  defences. 

220.  When  legal  proceedings  may  be  set  aside. 

221.  Erroneous  liut  not  void  judgments  not  set  aside. 

222.  Equit_y  will  not  revise  proceedings  of  inferior  courts. 

223.  Equity  does  not  entertain  direct  suits  for  money,  nor  determine 

cases  involving  mere  legal  questions. 

224.  Penalties  and  forfeitures. 
22.5.  Election  cases. 

226.  When  legal  rights  will  be  enforced. 

227.  Doing  full  and  complete  justice. 

228.  Equitable  conversions. 

229.  Discretion  of  equity. 

230.  Classification  of  equitable  remedies — trusts. 

231.  Frauds. 

232.  Cancellation  and  rescission. 

233.  Reformation. 

234.  Specific  performance. 

235.  Clearing  titles. 

236.  Partnership — heirs. 

237.  Suretyship. 

238.  J^e  exeat  writs. 
2.39.  Bills  of  discovery. 
240.  Injunction. 

It  is  manifest  that  all  which  can  be  emhraced  in  this  chap- 
ter is  a  mere  outline  of  the  general  principles  of  equity  juris- 
diction, in  a  connected  view,  as  a  kind  of  guide  in  conducting 
a  full  research.  For  details,  resort  must  be  had  to  works 
especially  devoted  to  equity  in  general,  or  to  particular  topics 
embraced  within  the  range  of  the  subject  of  equitable  juris- 
diction. 

§  215.  The  fundamental  basis  of  equitable  jurisdiction  is 


224 


EQUITY. 


the  want  of  a  full  and  adequate  remedy  at  law.  The  whole 
superstructure  rests  on  this,  as  the  foundation.  To  prevent 
the  jurisdiction,  however,  "it  is  not  enough  that  there  is  a 
remedy  at  law;  it  must  be  plain  and  adequate,  or,  in  other 
words,  as  practical  and  efficient  to  the  ends  of  justice  and  its 
prompt  administration  as  the  remedy  in  equity. "(a)  And  so, 
courts  of  equity  will  interpose,  even  when  legal  questions  alone 
are  involved,  if  the  remedy  at  law  is  not  clear,  certain  or 
adequate. (/>)    And  it  is  no  bar  to  a  proceeding  in  equity  that 


(a)Boyco's  Ex'rs  ».  Grundy,  3  Pet. 
215. 

(i)Nevilt  V.  Gillespie,  1  How. 
(Miss.)  110;  Swift  v.  Larnxbee,  31 
Conn.  237. 

It  is  not  enough  that  there  may 
be  a  pomble  remedy  at  law;  and 
more  especially  if  a  remedy  at  law 
lia.s  become  embarrassed  by  the 
fraud  of  a  defendant  will  equity 
entertain  jurisdiction,  llichardson 
V.  Brooks,  52  Miss.  119.  The  legal 
remedy  must  be  plain  and  adequate. 
Thus,  although  the  general  rule  is 
that  a  court  of  equity  is  not  the 
proper  tribunal  for  determining 
the  legal  title  to  lands,  yet  the  rule 
does  not  apply  where,  in  a  suit  at 
law,  the  title  comes  into  the  con- 
troversy only  incidentally,  so  that 
a  decision  for  one  party  will  leave 
an  apparent  record  title  in  the 
other.  \i.  11.  V.  Gordon,  41  Mich. 
421.1. 

Equity  may  dear  clouds  from  legal 
titles,  (Handy  v.  Noonan,  51  Miss. 
16(j,)  especially  under  statutory  au- 
thority; but  it  is  a  limited  power, 
and  cannot  l^e  invoked  merely  to 
try  conflicting  titles  to  lands,  or  to 
usurp  the  place  of  ejectment  suits 
tit  law.  And  it  is  held  that  the 
jurisdiction  does  not  draw  to  it  the 
powers  incident  to  the  exercise  of 
general  equity  jurisdiction,  to  take 
tontrol  of  the  entire  controversy 
us  to   title,  possessory  rights,  and 


claims  to  rents  and  profits.  Phelps 
«.  Harris,  51  Miss.  789.  And  so  a 
suit  in  equit}',  to  recover  the  posses- 
sion ofl'inds  under  a  legal  title,  and 
for  mesne  profits,  cannot  be  sus- 
tained ;  because  this  is  essentially 
an  action  of  ejectment.  Cavedo  v. 
Billings,  16  Fla.  2(51.  And  so, 
equity  will  not  entertain  a  suit  to 
settle  boundaries  between  land  own- 
ers. Hill  0.  Proctor,  10  W.  Ya.  59. 
So,  where  the  title  to  personal  prop- 
el ti/ can  he  settled  in  an  action  of 
replevin,  (which  is  almo.st  or  quite 
invariably  the  case,)  equity  will  not 
intervene,  even  on  a  petition  hy  the 
claimant  that  his  vendor  and  the 
plaintiff  may  be  compelled  to  inter- 
plead and  settle  the  question  of 
title  between  them.  Long  v.  Barker, 
85  III.  431. 

Even  if  equity  may  entertain  ju- 
risdiction, yet,  if  questions  of  own- 
ership and  possession  and  dedica- 
tion to  the  public  use  arise,  and  are 
left  doubtful  on  the  evidence,  it  is 
held  that  it  is  proper  to  dismis.ss 
the  bill  without  prejudice,  so  that 
the  doubtful  questions  may  be  set- 
tled in  a  legal  proceeding — after 
which  either  party  will  be  at  lib- 
erty to  invoke  the  court  of  equity 
to  prevent  vexatious  litigation  as 
tothes;ime  subject-matter.  Hacker 
V.  Barton,  84  111.  313.  And  so, 
equity  will  not  entertain  a  bill 
merely  to    ascertain  whether   the 


EQUITY. 


225 


the  complainant  had  commenced  an  action  at  law,  which  he 


relation  of  mortgagor  and  mort- 
gagee exists.  Micou  «  Ashurst,  55 
Ala.  mi. 

As  to  the  administration  of  an 
estate,  equity  will  not  ordinarily  en- 
tertain jurisdiction  therein.  There 
must  be  some  special  reason  for 
guch  interference  with  a  probate 
court.  If  it  appears  that  the  pro- 
bate court  can  grant  due  relief  the 
parties  will  be  left  to  the  remedies 
thereby  available.  Heustis  «'.  John- 
son, S4  111.  61.  Nor  will  a  court  of 
equity  entertain  an  action  merely 
to  construe  the  provisions  of  a  will 
relating,  not  to  trusts,  liut  only  to 
legal  rights.  Chipman  v.  Mont- 
gomery, 63  N.  Y.  221 ;  Whitman  v. 
Fisher,  74  111.  149.  And  so,  a  court 
of  equity  will  not  determine  the 
right  of  one  claiming'  to  be  heir  of 
an  intestate  by  contract  and  adop- 
tion. Ross  ».  Ro.ss,  123  Mass.  212. 
Nor  will  equity  entertain  a  bill  to 
compel  an  administrator  to  perform 
his  legal  duty,  (Collins  v.  Stephens, 
58  Ga.  284,)  or  intermeddle  in  mat- 
ters of  settlement  on  behalf  of  mi- 
nor distribute  js  oncoming  of  age. 
Piatt  V.  Longwortli,  Ex'r,  et  al.  27 
O.  St.  160.  But  where,  by  statute, 
an  equity  court  has  the  right  to 
decree  the  sale  of  lands  by  an  ad- 
mir  istrator,  the  court  has  incidental 
power  to  enforce  a  bond  given 
therein  for  the  proper  application 
of  the  proceeds.  Brunini  v.  Pera, 
54  Miss.  651.  And  may  direct  the 
proceeds  of  crops  raised  on  lands 
by  an  administrator  under  the  order 
of  the  chancery  court.  Evans  v. 
llobertson,  54  Miss.  683. 

Equity  will  not  supplj''  mere  de- 
fects of  statutory  remedies.  Janney 
V.  Buell,  55  Ala.  408.  Nor  can  it 
relieve  parties  from  the  mere  effects 
of  &  failure  to  ereeute  an  instrument, 

v.l— 15 


as,  for  example,  an  instrument  in- 
tended to  effect  the  ailoption  of  a 
child.  Long  v.  Hewitt,  44  la.  363. 
And  so,  equity  will  not  enforce  a 
volvntary  contract,  or  une.vecuted 
gift,  even  in  matters  of  family  set- 
tlement. AVadhams  «.  Gay,  73  111. 
417. 

In  regard  to  mntters  of  account,  it 
is  not  every  account  which  will  en- 
title a  court  of  equity  to  interfere ; 
as,  for  instance,  a  claim  of  one  ex- 
ecutor against  a  co-executor,  for  a 
pro  rata  share  of  commissions  paid 
to  and  retained  by  the  former,  is  no 
foundation  for  an  equitable  suit, 
since  it  can  lie  enforced  at  law. 
Bellamy  «.  Hawkins,  16  Fla.  737. 
Nor  can  a  corporation  sue  its  former 
officers,  in  equity,  for  the  misappro- 
priation of  funds  coming  into  their 
hands  while  they  were  officers. 
Bay  City  Bridge  Co.  ».  Van  Etten, 
36  Mich.  210.  And  if,  on  the  for- 
mation of  a  corporation,  two  per- 
sons enter  into  an  agreement  that 
one  of  them,  as  a  trustee,  shall  hold 
certain  shares  of  stock,  to  be  issued 
to  the  other  on  payment  of  assess- 
ments, a  failure  to  issue  the  stocks 
on  such  payment  will  not  justify  a 
suit  in  equity  on  the  ground  that 
the  holder  had  sold  the  shares  and 
appropriated  the  proceeds,  since 
there  is  an  adequate  remedy  at  law 
in  such  case.  Frue  v.  Loring,  120 
Mass.  507.  And  a  bill  alleging  that 
the  defendant  had  agreed  to  pay  the 
plaintiff'  a  certain  conynission  on 
merchandise  consigned  to  the  de- 
fendant either  by  the  plaintiff'  or  by 
other  persons  ;  that  there  had  been 
large  consignments  thus  made,  but 
to  what  amount  the  plaintiff  is  not 
informed ;  that  the  accounts  are 
too  complicated  to  be  conveniently 
adjusted    in   a  court  of   law;   and 


'220 


EQUITY. 


finally  abandoned  on  discovering  that  it  would  be  of  necessity 
inotfectual.(c) 

§  216.  The  jurisdiction,  moreover,  is  not  ousted  merely  by  the 
fact  that  courts  of  law  have  come  to  exercise  a  kind  of  equitable 
jurisdiction.  But  the  correct  view  in  such  case  is  held  to  be  that, 
where  equity  originally  possessed  exclusive  jurisdiction,  but 
afterwards  courts  of  law  came  to  exercise  an  equitable  juris- 
diction, this  will  be  regarded  as  concurrent,  so  that  a  party 
may  proceed  in  either  court  for  relief,  notwithstanding  the 
rule  in  other  cases  that,  where  a  court  of  law  can  give  a  full 
and  adequate  remedy,  equit}'  will  not  take  cognizance  of  a 
cause. ((Z)  But  this  cannot  apply  where  all  distinctions  be- 
tween law  and  equity  are  done  away  by  legislative  enactment, 
and  there  is,  therefore,  but  a  single  forum  for  all  matters  in 
controversy,  (e) 

It  is,  on  the  general  principle  herein  stated,  that  a  court 
of  equity  will  decline  to  decide  whether  a  private  nuisance 


praying  for  a  discovery  and  for  an 
account,  lias  been  held  not  to  lie 
maintainable.  Badger  v.  jNicXa- 
mara,  123  Mass.  117. 

Accounts  must  be  mutual  to  jus- 
tify interference,  and  not  all  on  one 
side,  and  must  consist  of  a  series  of 
demands  and  payments,  and  not 
mere  set-offs  bj'  way  of  payment. 
Porter  v.  Spencer,  2  Johns.  Ch.  169; 
Pearl  v.  Nashville,  10  Yerg.  179; 
Foley  V.  Hill,  1  Phillips,  407  ;  War- 
ren V.  Coal  Co.,  83  Pa.  St.  441. 
And  as  to  a  mechanic's  lien,  under  a 
statute  which  gives  priority  to  the 
claim  as  against  subsequent  convey- 
ances, the  statutory  relief  must  be 
relied  on,  and  equity  will  not  inter- 
fere to  settle  the  respective  rights 
of  the  lien-holder  and  incum- 
ijrancers  or  purchasers.  Cole  v. 
Colby,  57  N.  PI.  101;  Colly  «. 
Dr.usrhty,  62  Me.  .501 ;  Wall  v.  Rob- 
inson, 115  Mass.  429.  Yet,  where 
tiiere  is  a  deed  of  trust  on  land, 
and  the  land  is  sold  to  two  purchas- 


ers, one  of  whom  is  compelled  to 
pa  V  the  amount  of  the  mortgage  debt 
in  order  to  protect  his  own  portion 
of  the  land,  equity  will  apportion 
the  encumbrance,  and  compel  the 
other  to  contribute  his  share,  and 
pay  it  to  the  purchaser  who  has 
dischartred  the  claim  by  j-ayment. 
Briscoe  «.  Power,  85  111.  420.  In 
Alabama  it  has  been  held  that  a 
statute  allowing  suits  at  law  to  re- 
cover for  labor  perfoimed  for  the 
benetit  of  trust  estates  has  the  effect 
of  ousting  equity  jurisdiction  there- 
for. Askew  V.  Myrick,  54  Ala.  30. 
Equity  still  appears  to  have  juris- 
diction to  establish  a  claim  founded 
on  an  instrument  under  seal  which 
is  lost.  Patton  v.  Campbell,  70  111. 
72;  Hickman  v.  Painter,  11  \V.  Va. 
386. 

(c)McCloskev  ».  McCormick,  44 
111.  33>;. 

(d)Heath  v.  Bank.  44  X.  II.  177. 

(ejCarpeuter  v.  City,  30  Cal.  442. 


EQUITY.  227 

■exists  or  not,  even  for  the  imriDose  of  an  injunction,  until  the 
party  asking  the  interference  of  the  court  has  established  his 
rights  by  law.(/) 

§  217.  It  may,  j)erhaps,  be  regarded  as  a  partial  exception 
to  the  above  rule,  that  a  court  of  equity  will  entertain  a  cause 
in  order  to  repress  a  multiplicity  of  suits  at  law;  a  principle 
well  established  wherever  distinct  ecpiity  powers  exist.  It 
applies  where,  by  tlie  interposition  of  the  court,  the  plaintiff 
is  relieved  against  the  necessity  of  bringing  a  large  number 
of  separate  suits  against  different  individuals,  merely  to  quiet 
the  same  common  right,  where  only  the  same  right  would  l)e 
involved  in  each.  And,  on  the  same  principle,  a  court  of 
equity  will  interpose  to  put  an  end  to  vexatious  and  ruinous 
litigation,  where  a  party  has  satisfactorily  established  his 
legal  rights. (r/)  And  the  principle  applies  either  to  a  plaintiff 
or  defendant,  liable  to  a  multiplicity  of  suits.  But,  in  such 
cases,  there  must  be  such  a  unity  of  interest,  on  one  side  or 
the  other,  as  to  bring  the  litigation  within  the  ordinary  rules 
of  equity  pleading.  (//) 

An  apparently  marked  exception  is  laid  down  by  the 
supreme  court  of  the  United  States,  in  a  case  wherein  it  was 
decided  that  even  although  an  action  would  lie  under  a  stat- 
ute, and  although  a  writ  of  mandamus  might  be  issued,  yet 
equity  would  interfere.  Nevertheless,  exceptional  as  it  appears, 
the  equitable  jurisdiction  was  placed  on  the  ordinary  ground 
of  inadequacy  of  the  law. 

The  case  was  this :  The  town  of  Beloit,  Wisconsin,  by 
authority  of  the  legislature,  subscribed  to  the  capital  stock  of 

(/)Eastman  v.  Co.  47  X.  H.  77.  Lave  no  jurisdiction  to  order  such 

And  where  the  law  provides  for  abatement.     Remington  «.    Foster, 

the  lieeping  of  jails  in  a  health}^  42  Wis.  60S.     Unless,  indeed,  many 

condition,  equity  has  no  jurisdic-  persons  are  alike  affected,  and  by 

tion  to  enjoin  the  use  of  a  particu-  joining  ma}^  prevent  a  multiplicity 

lur  jail  on  the  ground  that  it  is  a  of  suits.     Cadigan   «.    Brown,    120 

nuisance,  and  endangers  the  health  Mass.  493. 

of  the  prisoners  confined  therein.  ((/)Nevitt    v.   Gillespie,    1    How. 

iStuart  V.   Supervisors,  83   III.  341.  (Miss.)  110. 

And  where  a  statute  authorizes  the  (7i)Swift    «.   Larrabee,  31    Conn. 

(ibaleiaent  of   private    nuisancfis,  in  240. 

actions  at  law,   equity  is  held  to 


OOg  EQUITY. 

a  railroad  company,  and  issued  bonds  upon  the  subscription. 
Three  years  afterwards  the  city  of  Beloit  was  formed  within 
the  same  territory  occupied  by  the  town  of  Beloit,  and  the 
charter  contained  this  provision:  "All  principal  and  interest 
upon  all  bonds  which  have  heretofore  been  issued  by  the  town 
of  Beloit  *  *  *  shall  be  paid  when  the  same,  or  any 
portion  thereof,  shall  fall  due,  by  the  city  and  town  of  Beloit, 
in  the  same  proportions  as  if  said  town  and  city  were  not  dis- 
solved. And  in  case  either  town  or  city  shall  pay  more  than 
its  just  and  equal  portion  of  the  same  at  any  time,  the  other 
party  shall  be  liable  therefor."  Suit  was  brought  on  the 
bonds  against  the  town  of  Beloit  and  judgments  recovered. 
The  judgments  being,  unpaid,  the  plaintiff  filed  a  bill  against 
both  city  and  town,  averring  that  the  amount  of  the  judg- 
ments ought  to  be  paid  proportionately  by  the  defendants,  as 
provided  by  the  above  quoted  provision  of  the  charter;  that  the 
taxalle  property  of  the  city  exceeded  that  of  the  town,  and 
that,  although  the  city  ought  to  pay  its  proportion,  the  com- 
plainant was  remediless  at  law.  It  also  set  out  the  propor- 
tions, and  concluded  with  a  general  prayer  for  relief. 

It  was  contended  that,  on  bonds  given  by  the  town,  a  joint 
action  at  law  could  not  be  brought  against  both  town  and  city; 
that,  if  the  city  were  sued  alone  thereon,  the  plea  non  est  factum 
could  be  successfully  interposed ;  and  that  if  an  action  of 
debt,  founded  on  the  statute  alone,  were  brought,  then  it  would 
be  difficult  [not  impossible,  but  difficult]  to  settle  the  pro- 
portion between  the  city  and  town  in  an  action  to  which  the 
town  was  no  party ;  and  that  these  facts  g^'e  jurisdiction  to 
a  court  of  equity,  which  was  the  only  tribunal  competent  to 
render  full  justice  between  the  parties — especially  so,  since, 
if  the  town  were  compelled  to  pay  the  entire  debt,  it  would 
have  an  action  against  the  city,  under  the  statute,  for  con- 
tribution, and  it  is  the  policy  of  courts  to  prevent  a  circuity  of 
actions,  which  is  avoided  by  bringing  suit  in  equit}'  against 
both.  On  the  other  hand,  it  was  maintained  that  "on  merits 
the  case  was  not  good.  Though  equity  is  liberal  in  the  adapta- 
tion of  its  remedies,  it  does  not  give  a  remedy  to  every  party 
merely  because  he  is  in  difficulty,  nor  unless  his  difficulty  be 


EQUITY.  229 

covered  by  some  specific  ground  of  equitable  juristlietion. 
Here  there  is  an  adequate  legal  remedy'  by  mandamus.  It 
may  be  a  troublesome  remedy,  but  he  has  it.  And  equity  will 
not  devise  a  new  ground  of  jurisdiction  because  a  speculator 
in  town  bonds  is  unlucky  in  his  legal  remedies." 

The  court  held  that  "the  two  corporations  are  as  separate 
and  distinct  as  if  the  territories  they  embraced  respectively 
had  never  been  united.  It  is  obvious  that,  without  a  legis- 
lative provision  to  that  effect,  the  city  would  not  be  answer- 
able at  law  for  the  debts  of  the  town  incurred  before 
the  former  was  created.  Whether  but  for  the  statute  the 
city  would  have  been  chargeable  in  equity  it  is  not  necessary 
to  consider.  The  statute  is  conclusive  as  to  a  liability  to  be 
enforced  in  some  form  of  procedure.  The  only  question  before 
us  is  whether  there  is  a  remedy  in  equity.  It  may  be,  as 
suggested  by  the  counsel  for  the  appellant,  that  an  action 
would  lie  upon  the  statute.  It  is  also  possible  that  a  proper 
case  for  a  writ  of  mandamus  might  be  made.  But  these 
inquiries  are  only  material  as  bearing  upon  the  question 
whether  there  is  an  adequate  remedy  at  law.  If  so,  a  suit  in 
equity  cannot  be  maintained.  To  have  this  effect  the  remedy 
at  law  'must  be  as  plain,  adequate  and  complete,'  and  'as 
practical  and  efficient  to  the  ends  of  justice  and  to  its  prompt 
administration,  as  the  remedy  in  equity.*  When  the  remedy 
in  law  is  of  this  character,  the  party  seeking  redress  must 
pursue  it.  Iilsucli  cases  the  adverse  party  has  a  constitu- 
tional right  to  a  trial  by  jury.  19  How.  278.  The  objection 
is  regarded  as  jurisdictional,  and  may  be  enforced  by  the 
court  sua  sponte,  though  not  raised  by  the  pleadings,  nor  sug- 
gested by  counsel.  The  provision  upon  the  subject  in  the 
sixteenth  section  of  the  judiciary  act  of  1789  was  only  de- 
claratory of  the  pre-existing  rule. 

"In  the  case  before  us  the  adjustment  of  the  amount  to 
be  paid  by  the  city  will  depend  upon  accounts  and  computa- 
tions founded  upon  the  proper  assessment  rolls.  In  order  to 
bind  the  town  it  is  necessary  that  it  should  be  made  a  party. 
This  cannot  be  done  in  proceedings  at  law.  If  the  town  should 
be  compelled  to  pa}^  the  entire  amount  the  right  is  given  by 


230  EQUITY. 

iho  statute  to  recover  back  the  proportion  for  which  the  city- 
is  liable.  This  would  involve  circuity  of  litigation.  The 
remody  at  law,  therefore,  is  neither  plain  nor  adequate. 

"The  question  whether  a  bill  in  equity  will  lie  is  disem- 
barrassed by  this  obligation. 

"The  authority  to  tax  for  the  payment  of  municipal  liabili- 
ties, in  cases  like  this,  is  in  the  nature  of  a  trust.  4  Wall. 
555.  The  jurisdiction  of  a  court  of  equity  to  interfere,  in  all 
cases  involving  such  an  ingredient,  is  too  clear  to  require  any 
citation  of  authorities.  It  rests  upon  an  elementary  princi- 
ple of  equity  jurisprudence. 

"  '  The  power  is  reserved  to  a  court  of  equity  to  act  upon  a 
principle  often  above  mentioned,  namely,  that  whenever  there 
is  a  right  it  ought  to  be  made  effectual.'  1  Kaine's  Prin.  of 
Eq.  3.  Where  there  is  a  right  which  the  common  law,  from 
any  imperfection,  cannot  enforce,  it  is  the  province  and  duty 
of  a  court  of  equity  to  supply  the  defect  and  furnish  the 
remedy,  "(i) 

§  218.  It  is  no  part  of  equity  jurisprudence,  accordingly,  to 
revise  or  correct  actual  proceedings  in  a  court  of  law.  And 
so,  equity  will  not  revise,  cancel  or  correct  the  records  of  a 
court  of  law.  Farmers'  Bank  of  Kentuckij  v.  Collins,  13  Bush, 
139,  It  has  no  superintending  power  belonging  to  it,  as  to 
other  courts ;  and  hence  a  court  of  equity  has  no  right  to 
inquire  even  into  the  proceedings  of  subordinate  courts  of 
special  or  local  jurisdiction,  in  order  to  set  them  aside  if  void 
at  law,  or  in  order  to  restrain  or  stay  them.  Such  proceed- 
ings are  to  be  reviewed  in  the  regular  course  of  error  or  appeal. 
And  the  fact  that  the  error  of  an  inferior  court  may  not  be 
corrected  by  a  common  law  certiorari,  does  not  constitute  a 
ground  for  equitable  jurisdiction.(  j) 

This  principle  rests  upon  this  basis,  namely:  "The  unfit- 
ness and  vexation  and  indecorum  of  permitting  a  party  to  go 
on  successively,  by  way  of  experiment,  from  one  concurrent 
tribunal  to  another,  and  thus  to  introduce  conflicting  de- 
cisions, "(A;)     And  yet  it  has  been  held  that  a  court  of  equity 

(i)Morgan  v.  Beloit,  7  Wall.  G14.  (/.jSimpson  v.  Hart,  1  Johns.  Cli. 

(jj  Hyatt  V.  Bates,  35  Barb.  316.  98. 


EQUITY.  231 

will  sometimes  hear  the  same  subject  of  controversy  upon 
grounds  not  litigated  in  the  court  of  law,  and  which  could  not 
have  been  there  litigated,  either  for  want  of  legal  testimony 
outside  of  the  oath  of  the  party  available  in  equity,  or  because 
it  was  a  subject  of  equity  jurisdiction,  and  therefore  not  ad- 
missible at  law,  or  perhaps  other  causes ;  and,  in  the  end, 
may  enjoin  the  judgment  obtained  on  such  defective  proceed- 
ing.(^)  Where  there  is  an  equitable  defence,  not  available  at 
law,  equity  may  enjoin  legal  proceedings  and  draw  the  con- 
troversy to  itself.  CorneUns  v.  Morrow,  12  Heisk.  630.  And, 
likewise,  in  a  case  which  involves  the  charter  rights  of  two 
corporations  to  a  stream  of  water,  it  has  been  held  that 
equity  will  enjoin  suits  at  law,  and  determine  the  matter 
itself;  and  this  is  said  to  be  on  the  ground  of  both  public 
and  i)rivate  necessity.  jR.  Co.  v.  Mfg.  Co.  30  N.  .J.  Eq.  145. 
It  has  been  held  that  equity  will  enjoin  an  action  of  ejectment 
where  the  heirs  of  an  estate  have  instituted  such  action 
against  the  purchaser  at  a  voidable  probate  sale,  and  will 
thus  compel  the  refunding  of  the  purchase  money  used  in 
23aying  the  debts  of  the  estate.  Cole  v.  Johnson,  53  Miss.  94. 
But  an  action  of  ejectment  will  not  be  enjoined  on  the  ground 
of  an  absolutely  void  deed,  on  which  the  j)laintitf  relies;  be- 
cause there  is  an  adequate  defence  herein  at  law.  Bishop  of 
Chicago  v.  Chiniquy,  74  111.  317.  Nor  will  a  suit  be  enjoined 
on  the  ground  of  the  invalidity  of  a  village  ordinance.  Yates 
V.  Bataria,  79  111.  500. 

§  219.  Equity  will  not,  however,  undertake  to  supply  de- 
fences, nor  counteract  the  neglect  of  a  j)arty  in  a  legal  action. 
Thus,  where  a  party  has  a  legal  defence,  but  through  care- 
lessness loses  the  opportunity  afforded  him  of  making  it  good 
in  a  suit  at  law,  he  has  no  right  in  equity  to  relief  against  his 
own  default.  This  principle  is  so  reasonable  that  it  is  sur- 
prising that  any  occasion  should  ever  arise  for  an  appellate 
court  to  announce  it.  And  yet  the  attempt  has  sometimes 
been  made  to  induce  a  court  of  equity  to  rectify  the  conse- 
quences of  a  personal  negligence,  but  it  is  hardly  necessary  to 

(l)Diiud  V.  XelsoQ,  1  Aik.  256. 


<2o2  EQUITY. 

say  it  has  alwaj's  failed  utterly  of  success. (wi)  Hence,  where 
rosort  is  had  to  equity,  after  a  legal  trial,  the  complainant 
must  he  ahle  to  impeach  the  verdict  on  just  and  equitable 
j^rouuds,  and  grounds  which  could  not  be  made  available  in 
the  action  at  law,  or  which  fraud,  accident,  or  the  wrongful 
act  of  his  opponent  prevented  him  from  setting  up  without 
his  own  fault  or  neglect.  And  a  voluntary  absence  from  the 
state  is  no  valid  excuse  for  failure  therein.(?i)  Because 
"every  person  is  bound  to  take  care  of  his  own  rights,  and  to 
vindicate  them  in  due  season  and  in  proper  order.  This  is  a 
sound  and  salutary  i)rineiple  of  law.  Accordingly,  if  a  de- 
fendant, having  the  means  of  defence  in  his  own  power,  neg- 
lects to  use  them,  and  suffers  a  recovery  to  be  had  against 
him  by  a  competent  tribunal,  he  is  forever  precluded,  "(o) 
And  so  equity  will  not  restrain  a  judgment  on  the  ground  of 
usury  or  fraud  even  in  the  contract  sued  on,  when  the  defence 
of  usury  liad  not  been  interposed  ;(p)  nor,  indeed,  if  it  was 
interijosed,  but  the  issue,  on  a  full  investigation,  was  found 
against  the  pleader. 

§  220.  Nevertheless,  under  certain  circumstances,  legal 
proceedings  will  be  set  aside  in  equity ;  when,  for  example,  a 
party  has  been  prevented  by  circumstances  over  which  he 
had  no  control,  nor  could  obtain  control  by  any  reasonable 
effort. (5)  While  a  court  of  equity  will  never  question  the  cor- 
rectness of  a  judgment  for  any  irregularity,  however  gross,  yet 
it  will  even  award  a  new  trial  at  law  where  a  manifest  fraud 
or  gross  injustice  is  shown  in  the  act  of  obtaining  the  judg- 
ment, (r)     But  the  evidence  must  be  very  clear,  and  it  would 

(//i)Peoria  v.  Kidder,  26  111.  358;  tify  equity  interference.     Tallman 

Blaugliter  v.  Gleason,  13  Wall.  553.  «.  Becker,  85  111.  is:]. 

(/OBurnleyt;.  Rice,  2lTex.  183.  (o)Le    Guen    v.    Gouverneur,    1 

And  not  on  the  ground  of  an  in-  Johns.  Cases,  (N.  Y.)  430. 

voluntary  absence  by  reason  of  po-  (p)Crawford  v.  Winofield,  25  Tex. 

litif-al   excitement,  and  threats  of  415.    (iicti  cases  cited  in  Res  AdJ adi- 

vi(;l('nce  from  others  than  a  party  cata.) 

inthecau.se.     Prater  «.  Robinson,  ((^jChittenden  «.  Rogers,  42111.  99. 

11  lleisk.  395.     And  the  failure  of  (r)Crafts  v.    Hall,   3    Scam.    133, 

a  witness  to  attend,  or  the  forget-  citing  1  .Johns.  Ch.  (N.  Y.)4UtJ,and 

fulness  of  a  witness,  will  not  jus-  3  Johns.  Ch.  275. 


EQUITY.  233 

be  a  dangerous  precedent  to  hold  that  random,  casual  expres- 
sions, sworn  to  after  a  long  lapse  of  time,  and  improbable, 
withal,  can  be  sufficient  grounds  for  awarding  a  new  trial. (.v) 

In  a  case  where  application  was  made  for  relief  against 
a  judgment  at  law,  on  the  ground  that  it  was  contrary  to 
equity,  and  that  the  complainant  had  a  defence  to  all  except 
merely  nominal  damages,  which  he  was  prevented  from  mak- 
ing by  accident,  since,  at  the  time  of  the  rendition  of  the 
judgment,  he  had  necessarily  been  in  attendance  on  another 
court,  where  he  had  prepared  an  affidavit  for  a  continuance, 
and  sent  it  to  his  attorney,  which  affidavit  could  not  be 
used  in  consequence  of  the  clerk's  accidental  omission  to  affix 
his  seal  to  the  jurat,  the  court  held  that  the  bill  failed  to  show 
due  diligence  in  the  defence,  because  it  did  not  directly  show 
that  the  complainant  had  employed  an  attorney  to  appear  for 
liim  in  the  cause,  and  did  not  show  that  any  motion  for  a  con- 
tinuance had  been  made,  or  that  there  had  been  any  pleas 
filed  in  the  cause;  the  princij)le  being  that  the  defendant  in  a 
judgment  complained  of  is  not  entitled  to  relief  against  it 
unless  he  was  ignorant  of  the  fact  in  question  pending  the 
suit,  or  it  could  not  have  been  received  as  a  defence,  or  he 
could  not  avail  himself  of  it  by  reason  of  fraud,  accident,  or  the 
act  of  his  opponent,  unmixed  with  negligence  or  fault  on  his 
own  part.(/) 

A  party  must  first  exhaust  his  remedy  in  the  law  court, 
against  a  void  judgment  rendered  therein,  by  motion  to  set  it 
aside,  before  equity  will  interfere,  xind  although  a  judgment 
rendered  out  of  term  time  is  absolutely  void,  3'et  where  a  bill 
was  brought  in  equity,  to  set  aside  a  judgment  on  an  injunction 
l)ondj  on  the  ground  that  the  judgment  in  the  injunction  suit 
itself  had  been  rendered  out  of  term,  and  was,  therefore,  a 
nullity,  relief  was  refused,  since  the  facts  impeaching  the 
validity  of  the  prior  judgment  should  have  been  presented  in 
the  suit  on  the  l^ond;  and,  also,  equity  will  not  relieve  against 
a  judgment  void  on  its  face,  such  form  of  relief  being  unnec- 
essary in  such  a  case.(//)* 

(«)llcvvett  »!.  Liicns,  42  111.  299.  (w)Dalton  v.  Libby,  9  Nev.  195. 

(<)Smitli  w.  Allen,  (J;]  111.  475.  *iiee  Rex  Adjadieata. 


I 


o;->4.  EQUITY. 

^  221.  Where  a  judgment  is  not  void,  but  is  merely  erro- 
neous, equity  will  not  interfere,  even  though  it  would  evidently 
be  reversed  on  error.  But  yet,  where  there  is  an  abuse  of  the 
process  of  the  law  court,  it  has  been  held,  in  Illinois,  that 
oquitv  will  give  relief;  as,  for  example,  where  a  person  know- 
ing the  defendant  in  attachment  is  not  indebted,  yet,  by  false 
affidavit,  secures  a  levy,  judgment  and  sale,  the  sale  may  be 
set  aside  and  the  proceedings  vacated. (t;)  But  I  know  of  no 
just  reason  why  the  power  to  set  aside  the  sale  would  not  be 
inherent  in  the  court  itself,  whose  process  was  so  abused,  on 
motion,  duly  sustained  by  proof  of  the  facts. 

§  222.  Equity  will  not  supervise  the  proceedings  of  a  jus- 
tice of  the  peace  on  any  other  grounds  than  those  pertaining 
to  the  proceedings  of  a  court  of  record.  And  so,  where  judg- 
ment was  rendered  against  a  plaintiff  who  brought  a  bill  to 
enjoin  the  sale  of  property  levied  upon,  because,  as  was 
alleged,  the  judgment  was  a  nullity,  and  was  obtained  by 
fraud,  the  court  said:  "If  the  judgment  was  erroneous,  the 
remedy  of  plaintiff  was  by  appeal ;  if  void,  she  had  a  rem- 
edy, by  motion,  to  have  the  execution  set  aside.  If  these 
remedies  have  been  lost  without  any  fault  or  negligence  of 
the  plaintiff,  and  if  we  concede  that  the  judgment  is  entirely 
void,  (a  question  we  have  not  examined,)  still  there  is  no  ne- 
cessity for  the  interference  of  a  court  of  equity  to  restrain 
the  enforcement  of  the  execution,  because  there  is  no  showing 
that  the  plaintiff"  cannot  have  an  adequate  and  complete  rem- 
edy at  law.  There  is  no  allegation  that  defendants  are  insolv- 
ent, or  unable  to  respond  in  damages. "(»■) 

>;  223.  And  a  direct  action  for  the  pa.yment  of  money 
merely  cannot  be  brought  in  equity,  and  without  a  warrant  in 
the  constitution  the  legislature  cannot  endow  a  court  of  equity 
with  the  power  of  determining  legal  questions  merely,  because 
thereby  the  right  of  trial  by  jury  is  contravened.  There  must 
be  equitable  grounds  of  relief,  as  contradistinguished  from  legal 
grounds,  (.r)  And,  moreover,  a  court  of  equity  cannot  prop- 
erly be  called  upon,  in  general,  to  determine  future  rights; 

(»))Gilibons  v.  Bressler,  61  111.  112.  (asjHaines'  Appeal,  73  Pa.  St.  171. 

(w)Connery  v.  Bwift,  9  Nev.  43. 


EQUITY.  235 

as,  for  example,  under  a  will(//) — except,  indeed,  where  pro- 
tection to  future  rights  is  necessary  to  be  afforded  in  the 
present. (^)  But  such  cases  as  this,  even,  do  not  involve  mere 
declaratory  decrees  as  to  future  rights. 

§  224.  Ordinarily  penalties  and  forfeitures  are  not  enforce- 
able in  a  court  of  equity,  and,  indeed,  it  has  been  declared 
that  courts  of  law  will  exercise  jurisdiction  in  civil  forfeitures 
with  great  reluctance,  and  only  in  clear  and  positive  cases. («) 
And,  in  equity,  penalties,  forfeitures,  and  securities  for  con- 
ditions broken,  are  strictl}'  regarded  as  mere  securities  for 
the  payment  of  money  or  performance  of  terms,  and  where 
compensation  can  be  made  for  breach,  in  some  other  mode, 
relief  will  be  afforded  against  the  rigid  enforcement  of  the  let- 
ter of  the  contract.  And  this  is  said  to  be  upon  the  principle 
that  a  court  of  equity  is  a  court  of  conscience,  and  will  per- 
mit nothing  unconscionable  to  be  inflicted  within  its  jurisdic- 
tion. (7;) 

§  225.  A  court  of  equity  will  not  inquire  into  the  validity 
of  elections,  even  in  case  of  an  omission  of  the  particular  case 
from  the  operation  of  the  general  law  as  to  contested  elec- 
tions, unless  such  jurisdiction  be  expressly  conferred  by  stat- 
ute, (c) 

§  220.  Although  equity  will  not  exercise  jurisdiction  to 
establish  a  disputed  legal  right  which  the  parties  can  as  well 
settle  in  a  court  of  law,  yet,  where  a  right  is  admitted  or 
established  at  law,  and  the  parties  disagree  as  to  the  extent 
of  the  right  or  the  mode  of  using  it,  equity  may  interfere  to 
define  the  right  and  regulate  its  use,  upon  the  ground  of  pre- 
venting a  multiplicity  of  suits. ((?) 

§  227.  It  is  a  settled  principle  that  where  a  court  has  jorop- 
erly  acquired  jurisdiction  of  a  cause  for  one  purpose,  it  will 
retain  it  in  order  to  do  full  and  complete  justice  between  the 
parties — especially  if  there  are  incidental  matters  to  be  deter- 
mined, in  order  to  give  effect  to  its  decree, (e)  so  that  litigation 

f//)Crnss  V.  DeValle,  1  Clill.  C.  C.  (i)<}rigg  v.  Landis,  21  K  J.  Eq. 

2^'i.  502,  and  authorities  cited. 

(v)Saine  case,  I  Wall.  15.  (O'^Ioorew.Hoisingtoii,  :51  Til.  247> 

(r^jWhite  V.  R.  K.  ]:i  Midi.  363.  (^/)Beam  v.  Coleman, 44  N.  11.  542. 

(e)De  Beniei-  v.  Drew,  39  How.  Pr.  (N.  Y.)  471.    • 


236  EQUITY, 

may  1)0  terminated  as  well  as  the  remedy  facilitated.  (/) 
And  this  is  so  more  particularly  if  the  available  remedy  in 
equity  as  to  a  cause  already  in  the  court  is  more  full  than 
could  be  afforded  by  a  court  of  law.  (.9) 

§  228.  It  is,  probably,  in  part  upon  this  principle  that  the 
doctrine  of  equitable  conversion  rests ;  so  that  if  by  statute. 
a  charitable  corporation  can  hold  a  devise  of  money,  but  not 
of  land,  and  a  court  of  equity  has  cognizance  of  a  will  con- 
taining such  devise  of  land,  the  court  may,  in  order  to  effect- 
uate the  purpose  of  the  testator,  regard  the  devise  as  of 
money,  and  not  land,  and  thereupon  direct  the  sale  of  the 
land  by  the  executor,  and  the  paying  over  of  the  proceeds  to 
the  corporation. (/?)  For  a  court  of  equity  is  not  bound  by  the 
literal  expressions  of  a  statute,  but  where  a  case  comes  within 
the  equity  of  the  statutory  provisions  it  is  held  to  be  within 
the  provisions  themselves. (i) 

§  229.  We  are  net,  however,  to  suppose  that  there  is  any 
absolute  discretion  vested,  in  equity,  in  anything;  but  pro- 
ceedings in  an  equitable  court  are  as  fully  subject  to  estab- 
lished rules  as  those  in  a  court  of  law,  and  the  exercise  of 
jurisdiction  is  so  likewise.  And,  indeed,  it  has  been  held 
that  the  rules  of  decision  are  the  same  in  both  tribunals. (J) 
The  leading  and  fundamental  jurisdictional  rules  or  maxims, 
as  I  understand,  are  these  three :  (1)  Equality  iS  equity. 
(2)  He  who  would  seek  equity  must  do  equity.  (3)  He  is 
first  in  right  who  is  first  in  time.  As  to  the  second  rule,  how- 
ever, it  must  not  be  carried  so  far  as  to  hold  a  party^  who  has 
committed  an  error  resi^onsible  for  all  the  remote  and  possi- 
ble consequences  that  may  arise  from  its  leading  others  to 
error  likewise,  through  a  false  confidence  in  it,  without  their 
examination  for  theinselves.(/t)  But,  for  example,  if  a  grantee 
in  a  deed  of  trust  seeks  to  reform  it,  and  a  defense  of  usury 
is  successfully  maintained  as  to  the  note  which  the  deed  was 
given  to  secure,  the  plaintiff  can  be  required  to  rebate  the 
usurious  interest  before  relief  will  be  given  him.(/) 

(/)Sand('rs'    Appeal,    57   Pa.    St.  {/)Davis  «.  Harkncss,  1  Gil.  181. 

-''(12.  (JjMoix'laiid  V.  Bank,  Breese,  26.5. 

(r/)Conyers  ").  Brown,  .3]  Ua.  385.  (A:)Peterson  »>.  Grover,  20  Me.  366. 

(/i)Harris  -o.  Slaglit,  46  Barb.  504.  (Z)Corley  v.  Bean,  44  Mo.  381. 


EQUITY.  237 

And  so  a  court  of  equity  will  never  assist  a  party  to  recover 
an  unjust  claim.  And  if  a  complainant  bases  his  demand 
upon  a  hard,  oppressive  or  technical  advantage,  he  must  be 
content  with  his  strict  and  technical  legal  rights. (»i) 

As  to  the  first  rule,  it  does  not  mean  that  equity  is  merely 
a  chancellor's  sense  of  moral  right,  justice  or  equality.  It 
must  be  applied  according  to  established  rules. (/;)  And  Jus- 
tice Story  has  remarked  that  "if  by  an  equity  is  meant  a 
mere  dictate  of  natural  justice,  in  a  general  sense,  it  is  not 
worth  while  to  discuss  it,  because  this  court  is  not  called 
upon  to  administer  a  system  of  mere  universal  principles.  If 
by  an  equity  is  meant  a  right  which  a  court  of  equity  ought 
to  enforce,  it  remains  to  be  proved  that  such  an  equity  exists 
in  the  jurisprudence  which  this  court  is  called  upon  to  admin- 
ister, "(o) 

§  230.  The  remedies  in  equity  are  (1)  curative,  in  which 
particular  they  agree  with  remedies  at  law;  and  (2)  prevent- 
ive,-in  which  particular  they  are  entirely  distinct  and  pecu- 
liar. A  brief  summary  of  each  class  in  order  will  occupy  our 
attention  here. 

And,  in  the  first  place,  as  a  court  of  equity  is  regarded  in 
the  light  of  a  court  of  good  conscience,  all  matters  of  trust 
come  specially  under  its  supervision,  sometimes  exclusively, 
and  sometimes  concurrently  with  courts  of  probate  and  other 
courts.  And  this  supervision  extends  to  implied,  as  well  as 
express,  trusts — that  is  to  say,  whether  trusts  arise  from  a  will 
or  by  deed,  or  operation  of  law,  or  by  the  acts  or  relations  of 
the  parties,  they  may  be  enforced  in  equity;  and  whether 
they  are  established,  therefore,  by  direct  proof,  or  legal  pre- 
sumption. (/>)  And  a  court  may  remove  a  delinquent  trustee, 
in  order  to  enforce  the  execution  of  a  trust;  as,  for  example,  a 
trustee  or  executor  under  a  will.(r/)  And  in  matters  of  offi- 
cial trusts,  as,  for  example,  the  misapplication  of  assets  by  a 
sheriff,  a  court  of  equity  will  take  cognizance  of  the  breach 

(wl^^tono  1).  Pratt,  25  111.  34.  (7))Mc(iartney  v.  Bostwick,  32  N. 

(//,)Savings  lust.  v.  Makin,  23  Me.  Y.  57. 

.■!(;(;.  ((^)Ta.slcy  «.  Tasley,  1  Dew.  119. 
( '^jOret'iic  V.  Darling,  o  Ma.sou,2I5. 


238  EQUITY. 

thereof,  although  the  complainant  may  have  a  perfect  remedy 
jit  law  on  the  official  bond  of  the  defendant. (r) 

But  a  court  is  not  inclined  to  establish  an  implied  trust 
from  remote  or  general  circumstances,  as,  for  instance,  mere 
relationsliip.     Thus,  a  bill  was   brought  in  a  case  where   a 
fraudulent    concealment    of   the  value  of    the  property  was 
alleged    on  the  part   of   a    son-in-law  of  the    complainant, 
whereby  she  parted  with  her  life  estate  to  him  at  a  greatly 
reduced  price.     The  bill  averred  that  her  confidence  in  the 
son-in-law,  naturally  suj)erinduced  by  the  relationship,  con- 
tinued and  increased    until  the   day    of  the  sale ;    that  she 
reposed  entire  and  implicit  confidence  in  him,  believing  that 
he  was  truly  and  unselfishly  promoting,  as  he  best  could,  her 
pecuniary  interest;  and  that  he   was  well   aware  that   she 
reposed  such  confidence,  and  that  he  knew,  before  the  pur- 
chase, that  the  remainder-men  had  authorized  him  to  oifer 
her  a  much  higher  price  than  he  had  paid;   and  that  he  had, 
nevertheless,  represented  to  her  that  her  interest  was  worth 
even  less  than  the  sum  he  had  paid,  by  which  concealment  and 
misrepresentation  she  was  induced  thus  to  sell  to  him.     The 
court  held,  however,  that  the  mere  fact  of  such  relationshij) 
was  not  sufficient  to  impose  the  legal  duty  of  disclosing  the 
value  of  the  property,  but,  in  order  to  have  that  effect,  it  must 
appear  that  there  was  such  a  trust  growing  out  of  the  rela- 
tion as  to  authorize  the  complainant  to  act  upon  the  presump- 
tion that  there  had  been  no  concealment  of  any  material  fact 
from  her ;  and,  moreover,  that  this  could  not  be  inferred  under 
the  facts  of  the  case,  namely,  that  the  parties  resided  at  a 
remote  distance  from  each  other;  that,  although  the  social 
and  family  relations  were  cordial,  yet  the  intercourse  was  only 
occasional,  owing  to  the  distance ;  that  the    son-in-law  had 
not  apparently  acted  as  the  complainant's  business  agent  or 
adviser  in  any  way,  and   had  not   agreed,   in    this    special 
instance,  to  ascertain  the  value  of  her  life  estate,  or  the  price 
at  which  it  could  be  sold.     It  was  not  enough  that  the  com- 
plainant actually  did  place  confidence  in  him,  by  reason  of 
which  she  sold  to  him,  when  she  had  not  directly  informed  him 
(/■)Xortou  V.  Hixon,  25  111.  452. 


EQUITY.  239 

during  the  negotiation  that  she  relied  upon  him,  and  sold  to 
him  in  consequence  of  her  confidence  in  him.(.s) 

As  to  a  trust  deed,  the  rule  is  thus  laid  down  by  the 
supreme  court  of  Ehode  Island:  "The  proposition  of  ihe 
counsel  for  the  respondents  that  mere  volunteers  have  no 
equity  on  which  to  ground  a  claim  for  equitable  relief  is  quite 
too  broad.  If  the  deed  under  which  they  claim  be  defective, 
and  inoperative  at  law,  they  cannot  have  the  aid  of  a  court  of 
equity  to  complete  and  perfect  it,  any  more  than  they  can 
have  the  aid  of  the  court  to  enforce  a  promise,  or  even  cove- 
nant, without  consideration,  to  execute  the  deed.  In  other 
words,  the  court  will  not  help  them  to  he  cestuis  que  trust,  but 
remain  neutral  in  regard  to  the  defective  deed,  or  executory 
contract  to  give  one.  On  the  other  hand,  if  the  legal  con- 
veyance be  effectually  made,  the  court  will  protect  all  equi- 
table interests,  and  enforce  all  equitable  rights  and  duties 
under  it,  as  promptly  and  completely,  though  made  without, 
as  if  made  with,  consideration.  The  party  who  makes  a 
voluntary  deed,  whether  of  real  or  personal  estate,  without 
reserving  a  power  to  alter  or  revoke  it,  has  no  ris;ht  to  disturb 
it,  and  as  against  himself  it  is  binding  both  in  equity  and  at 
law.(f) 

§  231.  Closely  connected  with  this  is  equitable  jurisdiction  in 
frauds.  And  I  think  that  in  most  of  the  states  even  frauds  for 
which  an  adequate  remedy  may  be  had  at  law  are  cognizable 
at  equity  likewise.  However,  it  is  otherwise  in  New  Hamp- 
shire, under  the  general  fundamental  principle  that  equity 
will  not  interfere  where  courts  of  law  can  give  full  relief.  (/<) 

Never  will  a  court  of  equity  lend  its  power  to  assist  or 
protect  a  fraud.  It  will  not  even  enforce  an  unconscionable 
bargain,  as  we  have  before  seen.  And  thus  the  supreme 
court  of  the  United  States  have  said:  "He  who  asks  relief 
must  have  acted  in  good  faith.  The  equitable  powers  of  this 
court  can  never  be  exerted  in  behalf  of  one  who  has  acted 

(.s)Clpland    V.   Fish,   43    111.    284.  610.     And  so  in  Alabama,  (Yonng- 

(.Justicf  Lawrence  dissenting.)  blood  v.  Youngblood,  i')4  Ala.  4s(i;) 

(ijSloncr  V.   Kint;-,  7  R.  1.  3(j.'j.  and  in  Georgia,  (Huff  v.  Itipley,  ;5y 

(w)Miller  v.  Scaniraon,  52  N.  H.  Ga.  11. 


240  EQUITY. 

fiauanlently,  or  T\ho,  by  deceit,  or  any  unfair  means,  has 
gained  an  advantage.  To  aid  a  party  in  such  a  case  would 
make  this  court  the  abettor  of  iniquity. "(r) 

§  232.  From  this  results  the  power  of  cancellation  and 
rescission,  even  to  the  extent  of  setting  aside  formally  executed 
conveyances  in  fraud  of  legal  or  equitable  rights.  Where 
there  is  an  adequate  remedy  at  law,  even  an  agreement  for 
the  sale  of  real  estate  will  not  be  rescinded  for  sufficient 
cause  shown.  Bruner  v.  Meigs,  74  N.  Y.  406.  But,  misrep- 
resentation in  procuring  a  bargain  will  furnish  an  equitable 
ground  for  setting  aside  a  conveyance  whereby  the  bargain 
was  consummated. (zt;)  And  so,  where  there  has  even  been 
a  complete  execution  of  the  terms  of  a  contract  for  the 
purchase  of  land,  by  the  delivery  of  a  deed  and  the  payment 
of  money,  and  then  the  title  fails,  in  part,  equity  will  decree 
a  return  of  the  money,  if  there  had  been  a  fraudulent  misrep- 
resentation of  the  title. (r) 

Also,  voluntary  conveyances,  designed  to  defraud  creditors, 
may  be  set  aside,  subject,  however,  to  the  general  rule  that  no 
interference  will  be  granted  at  the  instance  of  a  general  cred- 
itor before  judgment. (;/) 

In  Illinois,  where  a  woman,  three  days  before  her  marriage, 
sold  to  her  brother,  in  loco  parentis,  without  the  knowledge  of 
her  intended  husband,  and  with  the  avowed  purpose  of  pre- 
venting him  from  forbidding  such  sale,  certain  premises,  at 
less  than  one-fourth  their  value;  it  was  held  that  the  con- 
veyance should  be  set  aside  as  in  fraud  of  the  husband's  mar- 
ital rights,  the  same  as  if  it  had  been  purely  voluntary. (^) 
Whether  this  would  be  the  case  under  later  statutes  is  per- 
haps an  open  question. 

Where  a  bidder  at  a  judicial  sale  of  real  estate  makes  false 
representations  which  prevent  bidding,  and  thereby  obtains 
the  property  at  a  disproportionate  price,  relief  will  be  given, 

(r)Bein    v.    Heath,   6    How.   247,  (.r)Idera. 

approved  in  Kitchen  v.  Ravbun,  10  (^)Olierholsen    t>.    Greenfield.    47 

Wall.  263.                                "  Ga.  .V.S. 

(>/-)Allen  f).  BrattoD,  47  Miss.  130,  (j)Freeman  v.  Hartman,  45  111.  59, 

and  cases  cited.  and  authorities  cited. 


EQUITY.  241 

in  equity,  either  by  setting  aside  the  proceedings,  or  holding 
the  purchaser  to  an  account. (a)  And  so  the  unfair  proceed- 
ings of  an  otticer,  or  purchaser,  at  a  tax  sale,  will  vitiate  it, 
so  that  chancery  will  interfere. (/;) 

Where  there  was  an  agreement  to  exchange  real  estate,  and 
one  party  so  conducted  himself  as  to  induce  the  belief  of  the 
other  that  he  was  getting  all  of  a  certain  number  of  lots, 
whereas,  after  he  executed  and  delivered  his  deed,  he  found 
two  of  the  supposed  lots  were  not  included  in  the  exchange, 
it  was  held  a  proper  subject  for  relief  by  a  rescission  of  the 
agreement,  (c) 

Moreover,  if  a  purchaser  has  notice  how  the  vendor  consid- 
ers a  sale  of  other  property  in  the  neighborhood  as  affecting 
the  sale  of  his.  he  is  held  liable  if  he  wilfully  takes  advan- 
tage of  the  delusion,  however  illogical  or  absurd  it  may  be. 
And  the  materiality  of  a  false  representation  does  not  depend 
ujjon  its  actual  effect  upon  the  value  or  price,  but  ujDon  its 
influence  on  the  mind  of  the  contracting  party.  And  so,  if  a 
vendor  relies  upon  a  representation  made  by  a  vendee,  or  his 
agent,  as  to  the  non-occurrence  of  a  certain  event,  without 
any  knowledge  on  his  part  as  to  whether  it  has  occurred  or 
not,  after  being  informed  by  the  vendor  that,  in  case  of  the 
non-occurrence,  he  will  accept  a  much  lower  price,  the  vendor 
has  a  right  to  have  any  contract  made  on  such  representation 
rescinded,  in  case  the  event  has  occurred,  although  the  fact 
misrepresented  does  not  directly  afi'ect  the  value  or  price  of 
the  land.(r/) 

Whether  a  strict  relation  of  principal  and  agent  exists  or 
not  makes  no  difference  in  this  matter.  And  so,  where  one 
places  himself  in  a  confidential  relation  to  another,  as  by 
voluntarily  undertaking  to  assist  him  in  getting  his  property 
out  of  the  hands  of  others,  and  then  takes  advantage  of  the 
relation  to  acquire  the  property  through  deception  or  im- 
proper influence  at  an  inadequate  price,  equity  will  relieve,  (g) 

(^/)Cocks  V.  Iziu-d,  7  Wall.  562.  (d)Masterton  v.  Beers,  6  Kob.  (N. 

(/';)SriUel  v.  Maxwell,  0  Wall.  277.  Y.)  3S;5. 

(c) Underwood    v.    West,   43    111.  (^^jilarkness    «.    Frasers,  12    Fla. 

404.  337. 

v.l— 16 


2-12  .    EQUITY. 

However,  there  are  well-definecl  limitations  to  the  exercise 
of  this  jurisdiction  of  cancelling  contracts  or  instruments;  as, 
for  instance,  one  cannot  have  a  deed  set  aside  because  he  has 
not  received  the  consideration  merely.  Nor  can  a  grantor 
have  his  deed  annulled  and  his  land  restored  because  the 
deed  was  not  executed  in  accordance  with  the  requirements 
of  the  law.(/)  Nar  can  a  decree  of  rescission  properly  be 
made  when  both  parties  cannot  be  restored  to  their  original 
.status  in  reference  to  the  matter,  nor  if  the  party  seeking  (o 
rescind  is  himself  in  default,  or  has  not  offered  to  restore  the 
other  party  to  the  condition  he  occupied  before  the  contract 
was  made. (.9)  Neither  will  a  contract  be  rescinded  on  the 
ground  of  subsequent  fraud.  And  where  one  sold  land  to 
another,  who,  some  years  afterwards,  forced  the  seller  by  vio- 
lence to  give  up  the  unpaid  notes  for  the  purchase  money,  it 
was  held  he  could  not  obtain  a  rescission  of  the  contract  of 
sale.(/i) 

Nor,  if  the  invalidity  of  a  void  instrument  appears  on  the 
face  of  it,  will  equity  interfere,  although  otherwise  it  will,  even 
if  a  defence  may  be  made  thereon  at  law,  and  even  if  the 
holder  has  first  begun  suit  on  the  instrument. 

In  general  it  is  held,  however,  that  a  right  to  cancellation 
is  not  an  absolute  right  of  a  party,  but  rests  largely  in  the 
sound  discretion  of  the  court.  Sometimes,  notwithstanding 
both  parties  may  be  in  pari  delicto,  in  an  illegal  transaction, 
where  the  principle  of  public  policy  comes  in,  and  sets  aside 
the  rule  that  a  party  in  default  cannot  apply  for  a  cancella- 
tion, equity  may  intervene.  So  that,  in  such  matters,  as, 
for  example,  where  a  note  is  made  void  by  an  illegal  consid- 
eration, the  questions  occur,  (1,)  has  the  complainant  made 
such  a  case  as  that,  if  he  were  innocent,  he  would  be  entitled 
to  relief?  and,  (2,)  if  so,  does  the  best  interest  of  society  re- 
quire the  granting  of  relief,  notwithstanding  the  complain- 
ant's guilt?  for,  if  not,  the  court  will  deny  the  claim,  and 
leave  both  parties  in  whatever  difficulties  their  conduct  has 
brought  upon  them.    But  the  illegal  transaction  must  be  execu- 

(/)lhid-  (A)Fultou  v.  Loltis,  23  JS'.  C.  394- 

(S'jStewart  V.  Ludwick,  29  Ind.235. 


EQUITY.  243 

tory,  and  then  the  public  interests  must  demand  its  rescis- 
sion; because  it  is  hehl  that,  "much  as  the  community  is  in- 
terested to  discountenance  immoral  and  illegal  contracts,  its 
interests  will  not  be  subserved  by  setting  aside  executed  con- 
tracts and  unsettling  legal  titles.  "(^) 

§  3.3o.  Sometimes  instruments  which  are  not  subject  to 
rescission  nevertheless  require  to  be  reformed  in  order  to  give 
effect  to  the  intention  of  the  parties  thereto;  wdien,  through 
mutual  mistake,  they  have  imperfectly  or  improperly  drawn  the 
instruments;  and  this  belongs  exclusively  to  equity  jurisdic- 
tion. Thus,  a  deed  conveying  the  wrong  land;(./)  even  a 
deed  of  gift(A)  accidentally  conveying  the  house  of  the 
grantor, (/)  altliough,  in  such  case,  it  has  been  held,  the 
grantor's  evidence  of  his  intention  is  insufficient;  or  a  mort- 
gage misdescribing  the  land :(//;)  or  having  the  grantee's  name 
where  the  grantor's  should  be  ;(»)  or  a  deed  omitting  the  grant 
of  a  right  of  way;(o)  or  a  deed  of  trust  wherein  the  debt  is 
made  payable  to  the  trustee  instead  of  the  beneficiary,  and 
misstating  the  date  of  the  accompanying  bond; (7;)  or  bonds 
having  the  penalty  omitted  ;(r/)  or  a  w^ritten  agreement  with 
an  excessive  consideration  which  has  l)een  paid;(r)  or  a  judg- 
ment wherein  is  an  error  of  computation  in  rendering  it; (6-) 
or  a  printed  copy  of  a  will,  in  the  record  of  a  court  of  ap- 
jDcals,  in  which  the  true  will  is  clianged,  and  on  whi3h  judg- 
•  ment  is  rendered  in  the  court  ;(i)  or  a  policy  of  insurance  in 
which  the  name  of  an  individual  partner  is  inserted  instead 
of  the  name  of  the  firm;(M)  and  such  like  matters  may  be  re- 
formed on  the  proper  showing,  sustained  by  clear  and  satis- 
factory evidence  of  the  mistake.  But,  without  an  allegation 
and  proof  of   mistake,  a  party  cannot  be  allowed  to  prove 

(*) Porter ■».  .Tones, 6  C'Oldw.(Tenn.)  (pjBank  v.  Knssell,  ,50  Mo.  532. 

.'32i>,  and  autliorities  cited.  (<7)State  ex  rel.  v.  Frank's  Adm'r, 

(j)Parker  v.  Benjamin,  53  111.  257.  51  Mo.  98. 

(/:)IIu.ss  «.  Morris,  (J3  Pa.  St.  372.  (r)Boyce  «.  Wilson,  32  Md.  125. 

(^)Mitcliell  «.  Mitchell,  40  Ga.  16.  (.s)Barthell  v.  Roderick,  34  la.  518. 

(ffi)Schwickeratli  v.    Cooksey,  53  (^)Byrne   v.    Edmonds,   28   Gratt. 

Mo.  7().  200. 

{)i)M\no.r  V.  Davis,  10  Kan.  .547.  (;f)Keitli  v.  Insurance  Co.  52  111. 

(ry)B]akenian     v.    Blakeman,     39  522. 
Conn.  325. 


2+4  EQUITY. 

merely  tlie  intention  of  one  of  the  parties,  or  both,  in  opposi- 
tion to  the  plain  meaning  of  a  writing,  (f) 

Instruments  may  be  so  reformed,  however,  as  to  enlarge 
their  terms  and  so  enforce  rights  not  therein  expressed,  and 
thus  make  them  conform  to  the  prior  oral  agreement,  as  proved 
by  parol  evidence,  and  this  is  said  to  rest  on  the  ground  that 
the  subsequent  omission,  by  mutual  mistake  in  the  attempt 
to  reduce  the  contract  to  writing,  could  not  invalidate  tke  con- 
tract itself,  which,  therefore,  still  subsists,  so  that  the  incor- 
poration of  the  omitted  clause  may  be  compelled.  But  not  if 
the  omitted  clause  is  within  the  statute  of  frauds,  for  then  it 
is  not  valid  until  written.  Yet,  even  then,  relief  may  be  had 
against  the  enforcement  of  the  contract  as  written,  or  the 
assertion  of  rights  acquired  under  it  contrary  to  the  terms  and 
intent  of  the  real  agreement  between  the  parties,  since  it  is 
held  that  the  statute  of  frauds  does  not  forbid  the  defeat  or 
restriction  of  written  contracts,  nor  the  use  of  parol  evidence 
to  establish  equitable  grounds  therefor. (?(;)  However,  part 
performance  will  justify  the  reformation  which  otherwise 
would  fail. 

A  mistake  must  be  mutual,  as  a  general  rule,  or  if  it  is  the 
mistake  of  one  party  alone  it  must  be  caused  by  the  fraudu- 
lent concealment  of  the  other. (x)  And  so  the  correction  must, 
in  the  absence  of  fraud,  express  the  understanding  of  both 
parties  thereto  when  the  contract  was  executed. (//)  But  the 
rule  that  a  mistake  must  be  mutual  and  prevent  the  instru- 
ment from  expressing  the  terms  as  fully  understood  by  both 
parties  is  relaxed,  as  above  intimated,  where  the  party  against 
whom  relief  is  sought  has  acted  in  bad  faith,  and  with  full 
knowledge  that  the  instrument  did  not  conform  to  the  inten- 
tion of  the  other,  or  where  confidence  has  been  reposed  in  him 
and  abused;  as,  if  the  preparation  of  the  writing  was  en- 
trusted to  him,  during  which  he  either  carelessly  or  wilfully 
omitted  the  proper  terms,  and  the  other  party  relied  on  its 
correctness,  without  particular  examination  and  under  the 

(e)Free  v.  Meikel,  39  Ind.  318.  (.r)ODonnell  v.  Harmon,  3  Daly, 

(«-)Glass  V.  Hulbert,  102  Mass.  34.       (N.  Y.)  424. 

(i?)Harter  «.  Christoph,  32  Wis.  248. 


EQUITY.  215 

supposition  that  it  embodied  the  actual  agreement. (^)  Tliis 
is  upon  the  general  principle  that  no  one  shall  be  allowed  to 
take  advantage  of  his  own  wrong,  and  is  embraced,  also, 
within  the  general  jurisdiction  of  equity  in  cases  of  fraud. 
And  it  is  applicable  to  a  policy  of  insurance  as  well  as  to  any 
other  contract. (a) 

It  is,  also,  a  general  rule  that  the  mistake  must  be  one  of 
fact  merely  and  not  of  law.  So,  if  it  be  only  a  misappre- 
hension of  the  legal  effect  of  the  terms  of  the  instrument, 
equity  will  not  interfere. (/>)  For  if  a  party  actually  designs 
to  perform  an  act,  and  does  so,  under  a  mistaken  view  of  the 
law  affecting  it,  he  is  to  be  held  to  the  obligation  resulting 
from  his  intention. (c)  Equity  cannot  undertake  to  supply 
defects  in  the  knowledge  of  the  law,((i)  but  must  hold  parties 
to  have  comprehended  the  legal  effect  of  the  instruments  they 
execute  on  agreement. (e)  The  rule  is  thus  stated:  "Where  an 
instrument  is  drawn  and  executed  which  professes  or  is  in- 
tended to  carry  into  execution  an  agreement  previously  en- 
tered into,  but  which,  by  mistake  of  the  draftsman,  either 
as  to  fact  or  to  law,  does  not  fulfil  that  intention,  or  violates 
it,  equity  will  correct  the  mistake  so  as  to  produce  a  con- 
formity to  the  instrument. (/)  That  is,  a  mistake  inlaw  will 
be  relieved  against,  if  it  be  only  on  the  part  of  the  drafts- 
man, but  not  if  it  be  in  the  party.  And  it  must  be  shown 
that  the  instrument  misrepresents  the  intention  and  agree- 
ment of  the  parties. (r/)  And  so,  where  there  is  a  mistake, 
whether  of  law  or  of  fact,  in  reducing  an  agreement  to  form, 
or  in  carrying  it  into  effect,  relief  may  be  had;  but  where 
parties  actually  and  intentionally  adopt  it,  and  then  it  should 
fail,  through  their  ignorance  of  the  law,  to  operate  as  they 
intended,  the  courts  cannot  substitute  another  for  it.Qi) 

Yet  where  there  has  been  actual  or  legal  fraud,  a  mistake 

(2)Brioso  V  Insurance  Co.  4  Daly,  ((Z)Tliurmond  v.  Clark,  47  Ga.  502. 

(N.  Y.)  247.  (e)Fellows  v.   Heermans,  4  Lan. 

(a)Ibid;  Bryce  «.  Insurance   Co.  (N.  Y.)  241. 
5.5  N.  Y.  242.  (/)Hunt  v.  Adm'rs,  1  Pet.  13. 

(6)  Hoover  v.  Keilly,  2  Abb.  (U.  S.)  {g)lSelson  v.  Davis,  40  Ind.  368. 

473.  (/t)  Lanning  v.  Carpenter,  48  N.  Y. 

(c)Goltra  v.  Sanasack,  53  111.  457.  413. 


24.G  EQUITY. 

of  law  will  be  relieved  against ;  as,  if  necessary  knowledge 
has  been  withheld,  or  an  unreasonable  advantage  has  been 
taken  of  circumstances  under  the  pressure  of  which  a  party 
has  been  induced  to  do  what  he  othei-wise  would  not  have 
done.     The  will  must  not  be  coerced,  (i) 

In  CaHfornia  it  has  been  held  that  a  deed  made  under  a 
mistaken  view  of  the  personal  rights  of  the  parties  may  be 
cancelled, (,/■)  and,  per  consequence,  reformed;  and  this  is 
under  the  general  rule,  the  question  of  personal  right  being 
one  of  fact. 

In  order  to  entitle  one  to  relief  on  the  ground  of  mistake, 
he  must  show  that  he  has  used  diligence  and  good  faith  to 
avoid  the  consequences  of  the  mistake,  for  he  cannot  be 
allowed,  by  delay  and  omission,  to  inflict  irreparable  mis- 
chief to  the  other  party.  (/.-)  However,  if  one  of  the  parties 
to  a  deed,  executed  in  good  faith,  but  not  conforming  really 
to  the  previous  contract,  delays,  through  an  honest  and  rea- 
sonable reliance  upon  the  deed,  for  years  after  he  has  had 
notice  that  its  original  construction  is  denied  by  the  other 
party,  the  delay  is  not  chargeable  as  laches  against  him.(^) 

§  234.  Closely  related  to  this  subject  of  reformation  is  that 
of  a  specific  performance  of  contracts,  wherein  there  is  a 
very  marked  difference  between  the  jurisdiction  of  equity  and 
law ;  the  latter  being  unable  to  compel  performance,  but  only 
having  power  to  give  damages,  sometimes  wholly  inadequate, 
for  breach  of  contracts,  express  or  implied.  And  whether 
equity  will  enforce  the  performance  of  a  contract  does  not 
depend  upon  the  character  of  property  involved,  as  whether 
it  is  real  or  personal,  but  largely  upon  the  inadequacy  of  a 
recovery  of  damages  in  a  legal  action.  («i) 

The  fixing  of  a  penalty  by  the  contract  is  accordingly  no  bar 
to  a  suit  for  specific  performance. (n) 

Yet,  if  the  injured  party  may,  in  fact,  be  fully  indemnified 
in  damages,  courts  are  unwilling  to  decree  specific  perform- 

(?)"\Ylieelaa'.s  Appeal,  70  Pa.  St.  (Z)Stockbridge   Iron   Co.   v.   Iron 

410.  Co.  107  Mass.  323. 

(./Hlearst  v.  Pujol,  44  Cal.  234.  (/«)Duff  v.  Fisher,  15  Cal.  381. 

(AjTIiomasD.  Bait.;W,48KY.200.  (»)Daily?).  Litchfield,  10  Mich.  37. 


EQUITY.  247 

ance,(o)  on  the  general  principle  that  equity  jurisdiction 
attaches  properly  where  there  is  not  an  adequate  remedy  at 
law. 

The  pre-requisities  are  thus  st'ited  :  "In  hills  for  specific  per- 
formance the  contract  or  assignment  must  be  founded  on  a 
valuable  or  meritorious  consideration,  and  the  complainant 
who  seeks  the  performance  must  show  that  he  has  performed, 
or  offered  to  perform,  all  the  acts  which  formed  the  considera- 
tion for  the  alleged  undertaking  on  tlie  part  of  the  defendant. 
And  if  the  contract  be  vague  and  uncertain,  or  the  evidence 
to  establish  it  be  insufficient,  the  party  will  be  left  to  his 
legal  remedy.  iVnd  a  court  will  not  decree  a  specific  per- 
formance where  the  contract  is  founded  in  fraud,  imposition 
or  mistake,  or  where  it  would  be  unconscientious  to  enforce  it; 
although,  where  a  contract  for  the  sale  of  land  is  unobjection- 
able, it  is  as  much  a  matter  of  course  for  courts  of  equity  to 
decree  a  sj)ecific  performance  of  it,  as  it  is  for  a  court  of  law 
to  give  damages  for  a  breach  of  it,  provided  the  contract  is 
fair,  and  for  an  adequate  consideration. "(j^) 

It  is  not,  however,  a  matter  of  course  that  a  specific  per- 
formance will  be  decreed  where  a  legal  contract  is  shown  to 
exist.  It  must  have  been  entered  into  with  perfect  fairness, 
and  without  misapprehension,  misrepresentation,  or  oppres- 
sion. Nor  need  an  agreement  be  so  tainted  with  fraud  a.^. 
that  it  might  be  cancelled,  in  order  to  justify  a  refusal  of  a 
decree  for  specific  performance. (7) 

Awards  are  considered  so  far  in  the  light  of  contracts  as 
that  they  may  be  enforced  by  a  decree  for  specific  perform- 
ance, (r) 

If  to  a  bill  brought  to  enforce  a  specific  performance  the 
defence  is  set  up  that  there  is  a  mistake  in  the  contract,  the 
contract  may  be  reformed,  and  then  a  decree  be  rendered. (.s) 

Unless  in  exceptional  cases,  wherein  it  may  be  needful  to 
protect  an  innocent  purchaser  against  fraud,  a  contract  will 
not  be  divided,  but  enforced  entire. (f) 

(o)McCliine  v.  White,  10  Min.  1!)2.  (r)Ballaiice  v.  L'ndcrhill,  3  Scam. 

(7?)Fitzpatrick   v.   Beatty,    1   Gil.  453. 

467,  and  authorities  cited.  (.s)lbid. 

(g)Fritihyv.  Ballauce,4  ttcam.  299.  (i)lStune  v.  Trait,  25  111.  25. 


248  EQUITY. 

§  235.  The  removal  of  a  cloud  upon  title  to  lands  is  a 
branch  of  equity  jurisdiction.  A  cloud  ujjon  title  is  thus 
delined  by  the  California  court :  "If  the  title  against  which 
relief  is  prayed  be  of  such  a  character  as  that,  if  asserted  by 
action,  and  put  in  evidence,  it  would  drive  the  other  party  to 
a  production  of  his  own  title  in  order  to  establish  a  defence, 
it  constitutes  a  title  which  the  latter  has  a  right  to  call  upon 
the  coui-t  to  remove  and  dissipate.  If,  on  the  other  hand,  the 
title  be  void  on  its  face,  if  it  be  a  nullity,  a  mere  felo  de  se, 
when  produced,  so  that  an  action  based  upon  it  will  'fall  of 
its  own  weight,'  as  has  been  said,  then  the  title  of  the  party 
plaintiff  is  not  necessarily  clouded  thereby,  and  he  ought,  if 
he  would  maintain  an  action  to  have  it  removed,  show  some 
special  circumstances  which  entitle  him,  in  the  view  of  a  court 
of  equity,  to  a  decree  for  that  purpose." (u)  But  the  complain- 
ant must  be  in  possession,  even  if  not  in  actual  occupation ; 
for  if  out  of  possession  he  has  an  adequate  remedy  in  eject- 
ment ;(i;)  and  a  court  of  equity  has  no  jurisdiction  to  restore 
possession,  except  where  such  restoration  is  merely  inciden- 
tal to  the  main  purpose  of  a  bill,  the  power  of  the  court  being 
invoked  on  some  ground  within  the  legitimate  jurisdiction,  (?t') 
and  this,  therefore,  falling  under  the  general  principle  that 
when  a  court  of  equity  has  acquired  jurisdiction  of  a  cause 
for  one  purpose,  it  will  retain  the  cause  in  order  to  do  full 
justice  between  the  parties,  especially  in  effectuating  its  own 
decrees. 

§  236.  Matters  of  partnership  come  appropriately  within 
the  province  of  equity,  unless  there  has  been  a  balance  struck 
between  the  partners,  or  an  express  promise  exists. (a;)  And, 
in  New  Jersey,  an  heir  may  bring  a  suit  in  equity  for  his  dis- 
tributive share,  (i/) 

§  237.  Equity  seems  to  possess  concurrent  jurisdiction  in 
suretyship  in  most  of  the  states,  and  exclusive  jurisdiction  in 
some  of  them.(^) 

§  238.  In  most  of  the  states,  I  believe,  by  statute,  equity 

{u)Liek  V.  Ray,  43  Oal.  88.  (a!)Buell  v.  Cole,  54  Barb.  366. 

(o)Burton  v.  Gleason,  56  Til.  25 ;  (?/)Dorsheimer  v.  Rorback,  23  X. 

Gage  V.  Rohrback,  Ibid,  263.  J.  Eq.  47. 

(wjGrenn  v.  Spring,  43  111.  280.  (2)Heatli  «.  Bank,  44  N.  H.  175. 


EQUITY.  249 

lias  power  to  issue  ne  exeat  writs,  which,  however,  are  likely 
to  become  obsolete. 

§  239,  Bills  of  discovery  are  becoming  almost  wholly  super- 
seded by  the  statutes  removing  the  disqualification  of  parties 
in  interest  to  testify  in  actions  at  law,  which  statutes  will 
doubtless  soon  be  universall}'  enacted,  inasmuch  as  they  de- 
stro}'  a  transparent  legal  absurdity,  though  hoary  with  age. 

§  240.  We  come  now  to  the  preventive  jurisdiction  of  courts 
of  equity.  And  this  of  late  chiefly  lies  in  the  power  to  en- 
join, which  has  almost  superseded  bills  of  peace.  But,  in 
South  Carolina,  if  a  surety  apprehends  danger  from  delay  he 
can  apply  to  equity  to  compel  the  debtor  to  pay  the  debt  past 
due,  although  the  surety  has  not  been  sued  nor  paid  the 
debt.  Norton  v.  Eeid,  11  S.  C.  593.  These,  also,  may  still 
have  other  applications,  as  in  matters  of  disputed  bounda- 
ries, wherein  a  court  may  "direct  that  a  disputed  boundary 
be  surveyed  and  marked  in  a  permanent  manner,  thus  putting 
forever  at  rest  a  subject  of  chronic  contention. "(rtj 

Almost  every  abuse  and  oppression  may  be  reached  by  in- 
junction, provided  there  is  no  adequate  remedy  at  law,  for  in 
this  case  an  injunction  will  always  be  refused.  Thus  the 
prosecution  of  a  multiplicity  of  suits  may  be  enjoined; (6)  or 
encumbering  or  conveying  lands  wrongfully  ;(c)  or  the  wrong- 
ful use  of  a  judgment  improperly  and  fraudulently  ob- 
tained ;(fZ)  or  a  nuisance  ;(e)  or  infringement  of  an  exclusive 
trade-mark ;(/)  or  any  irreparable  damage  ;(f/)  with  this  ex- 
ception, however,  that  courts  will  not  interfere  to  restrain  the 
commission  of  an  ordinary  trespass  m3rely  on  the  ground  that 
the  defendant  is  not  j^ecuniarily  able  to  pay  damages  that 
might  be  recovered  against  him.(//.)  The  insolvency  of  a  party 
is  a  consideration  only  in  waste  or  matters  tending  to  perma- 
nent and  irreparable  injury  to  the  estate. (i)     (For  enjoining 

(^f)Primm    «.    liuboteau,   56   Mo.  (/jHradk'v  ».  Norton,  ll)id,  165. 

41().  (^)Buriiliain   «.   Kenipton,  44  N. 

(i)Uailroad  v.  Mayor,  etc.,  54  N.  11.  02;    R.   K.  v.   R.   R.  57  N.  H. 

Y.  15!).  2U0. 

(cjHo.xie  V.  Price,  .31  Wis.  89.  (/<). Morgan   v.  Palmer,  4S   N.  H. 

(d)Gainty  v.  Russell,  4U  Conn.  451.  33^. 

(e)Bishop  v.  Banks,  33  Conn.  118.  (/)lbid. 


250  EQUITY. 

judgments  see  "Res  Adjudicata.")  It  may  be  merely  re- 
marked here  that  equity  will  not  enjoin  a  judgment  for  mere 
irregularity.  Bowden  v.  Perdue,  59  Ala.  409.  Nor  on  this 
ground  review  the  action  of  municipal  corporations,  as,  for 
instance,  in  the  matter  of  street  assessments.  Guest  v. 
Brooklyn,  69  N.  Y.  500,  There  must  be  a  specific  equity  to 
justify  interference  herein.  Jersey  City  v.  Lemheck,  31  N.  J. 
Eq.  255.  Even  persons  claiming  exemptions  from  assess- 
ment must  ap2)ly  to  a  court  of  law.  Improvement  Co.  v.  Ho- 
hokcii,  Id.  461.  And  if  one  has  lost  his  legal  remedy,  by 
laches,  as  to  such  assessment,  he  cannot  be  relieved  in  equity^ 
Cleveland  v.  Road  Board,  Id.  473. 


ADMIRALTY.  251 


CHAPTER  III. 

ADMIRALTY, 

§  241.  Admiralty  jurisdiction  explained. 

242.  Distinction  between  admiralty  and  common  law. 

243.  Extension  of  jurisdiction. 

244.  How  jurisdiction  exercised. 

245.  VVlien  jurisdiction  attaches. 

246.  Efl'ect  of  state  statutes. 

247.  Seamen's  wages. 

24.S.  Conjoint  proceeding  in  personam  and  in  rem. 
24!).  Ousting  jurisdiction  by  mixed  contract. 

250.  Vessel  partnership. 

251.  Titles  to  ships — mortgages. 

252.  Contracts  for  building  ships — repairs. 

253.  Furnishing  supplies. 

254.  Maritime  liens — maritime  contracts. 

255.  Insurance,  etc. 

256.  Salvage. 

257.  Supervision  of  seamen's  contracts. 
25S.  Contracts  of  transportation. 

25!t.   Lien  by  advancing  money  to  release  vessel  seized  by  marslial. 

260.  When  suit  may  be  brought  where  a  promissory  note  has  beea 

given. 

261.  Distinction  between  vessel  and  cargo. 

262.  Collision. 

263.  Torts. 

264.  Violations  of  revenue  laws. 

265.  Felonies. 

266.  Pirates. 

267.  Admiralty  jurisdiction  as  to  foreigners. 

268.  Prize  jurisdiction. 

269.  Repairs  or  supplies  as  to  foreign  ships. 

270.  Trusts — specific  performance. 

§  241.  This  form  of  jurisdiction  was  confined  to  the  United 
States  courts  in  general,  for  the  ohvious  reason  that,  in  large 
measure,  it  is  of  necessity  international,  involving  the  inter- 
ests of  foreigners  and  their  rights  upon  the  high  seas ;  although 


252  ADMIKALTY. 

it  sometimes  runs  concurrently  with  the  jurisdiction  of  state 
courts.  Ml-.  Story,  in  his  work  on  the  Constitution,  speaks 
of  the  confusion  which  exists,  in  many  particulars,  regarding 
this  jurisdiction ;  and  also  sums  up,  succinctly,  the  subjects 
to  which  it  attaches,  thus:  "It  has  been  remarked  by  the 
Federalist,  in  another  place,  that  the  jurisdiction  of  the  court 
of  admiralty,  as  v^ell  as  of  other  courts,  is  a  source  of  frequent 
and  intricate  discussions,  sufficiently  denoting  the  indetermi- 
nate limits  b}'  which  it  is  circumscribed.  This  remark  is 
equally  true  in  respect  to  England  and  America;  to  the  high 
court  of  admiralty  sitting  in  the  parent  country,  and  to  the 
vice-admiralty  court  sitting  in  the  colonies.  At  different 
periods  the  jurisdiction  has  been  exercised  to  a  ver}'  different 
extent,  and  in  the  colonial  courts  it  seems  to  have  had  bound- 
aries different  from  those  prescribed  to  it  in  England.  It 
has  been  exercised  to  a  larger  extent  in  Ireland  than  in  Eng- 
land, and  down  to  this  very  day  it  has  a  most  comprehensive 
reach  in  Scotland.  The  jurisdiction  claimed  by  the  ceurts  of 
admiralty  as  properly  belonging  to  them  extends  to  all  acts 
and  torts  done  upon  the  high  seas,  and  within  the  ebb  and 
flow  of  the  sea ;  and  to  all  maritime  contracts — that  is,  to  all 
contracts  touching  trade,  navigation  or  business  upon  the 
sea,  or  the  waters  of  the  sea,  within  the  ebb  and  flow  of  the 
tide.  *****  rjj^^  admiralty  and  maritime  juris- 
diction (and  the  word  'maritime'  was  doubtless  added  to 
guard  against  any  narrow  interpretation  of  the  preceding 
word  'admiralty')  conferred  by  the  constitution  embraces 
two  great  classes  of  cases ;  one  dependent  upon  locality,  and 
the  other  upon  the  nature  of  the  contract.  The  first  respects 
acts  or  injuries  clone  upon  the  high  seas,  where  all  nations 
claim  a  common  right  and  common  jurisdiction ;  or  acts  or 
injuries  done  upon  the  coast  of  the  sea,  or,  at  furthest,  acts 
and  injuries  done  wirhia  the  ebb  and  tlow  of  the  tide.  The 
second  respects  contracts,  claims,  and  services  purely  mari- 
time, and  touching  rights  and  duties  appertaining  to  com- 
merce and  navigation.  The  former  is  again  divisible  into 
two  great  branches— one  embracing  captures  and  questions  of 


ADMIRALTY.  253 

prize  arising  ;?/7Y  belli;  the  other  embracing  acts,  torts  and 
injuries  strictly  of  civil  cognizance,  independent  of  lielligerent 
operations,  (a)     ****** 

"The  branch  of  jiirisdictipn  dependent  upon  locality  re- 
spects civil  acts,  torts  and  injuries  done  on  the  sea,  or  (in 
certain  cases)  on  waters  of  the  sea  where  the  tide  ebbs  and 
flows,  without  any  claim  of  exercising  the  rights  of  war.  Such 
are  cases  of  assaults,  and  other  j^ersonal  injuries;  cases  of  col- 
lision, or  running  of  ships  against  each  otlier;  cases  of  spo- 
liation and  damage,  (as  they  are  technically  called,)  such  as 
illegal  seizures  or  depredations  upon  property  ;  cases  of  illegal 
dispossession,  or  withholding  possession  from  the  owners  of 
ships,  commonly  called  possessory  suits;  cases  of  seizure, 
under  municipal  authority,  for  supposed  breaches  of  revenue 
or  other  prohibitor}'  laws,  and  cases  of  salvage  for  meritorious 
services  performed  in  saving  property,  whether  derelict,  or 
wrecked,  or  captured,  or  otherwise  in  imminent  hazard  from 
extraordinary  perils,  (/j)     ****** 

"The  remaining  class  respects  contracts,  claims  and  serv- 
ices purely  maritime.  Among  these  are  the  claims  of  mate- 
rial-men and  others  for  repairs  and  outfits  of  ships  belonging 
to  foreign  nations  or  to  other  states ;  bottomry  bonds  for 
moneys  lent  to  ships  in  foreign  ports  to  relieve  their  distresses 
and  enal)le  them  to  complete  their  voyages;  surveys  of  vessels 
damaged  by  perils  of  the  seas,  pilotage  on  the  high  seas,  and 
suits  for  mariners'  wages. (c)     *     *     *     *     * 

"We  have  thus  far  been  considering  the  admiralty  and 
maritime  jurisdiction  in  civil  cases  only.  But  it  also  em- 
braces all  public  offences  committed  on  the  high  seas,  and  in 
creek,  havens,  basins  and  bays  within  the  ebb  and  flow  of 
the  tide ;  at  least,  such  as  are  out  of  the  body  of  any  county  of 
a  state.  In  these  places  the  jurisdiction  of  the  courts  'of 
admiralty  over  offences  is  exclusive ;  for  that  of  the  courts  of 
common  law  is  limited  to  such  offences  as  are  committed 
within  the  body  of  some  county.  And  on  the  sea  coast  there  is 
an  alternate  or  divided  jurisdiction  of  the  courts  of  admiralty 

{<i)Yo].   2,   p.  441t,  H    KiCf;,   KJOG,  (/^)llti(l,  p.  453,  j  1669. 

(4tli  FA.)  (f)lhid,  p.  454,  §  1671. 


954  ADMIRALTY. 

and  common  law,  in  places  between  high  and  low-water 
mark,  the  former  having  jurisdiction  when,  and  as  far  as,  the 
tide  is  out,  and  the  latter  when,  and  as  far  as,  the  tide  is  in, 
usque  adfilum  aqiue,  or  to  high-water  mark."^'/) 

5^  242.  It  has  been  held  that,  unlike  the  common  law,  ad- 
miralty jurisdiction  is  not  defined  or  limited  by  the  judical 
rules  or  legislation  of   England  when    the  constitution  was 
adopted ;  and  that  such  legislation  and  rules  go  no  further,  as 
authorities,  than  merely  to  furnish  analogies  to  aid  in  constru- 
ing the  provisions  of  the  constitution.     Xor  is  it  held  rigidly 
to  the  test  of  a  jury  trial,  so  as  to  hold  that,  where  common  law 
courts  can  give  a  remedy  by  jury  trial,  the  admiralty  juris- 
diction is  excluded.     Nor,  in  cases  of  contract,  does  locality 
determine  the  jurisdiction,  but  the  subject-matter  only,  al- 
though, formerly,  it  was  otherwise  in  England,  and  although 
locality  now  determines  the  jurisdiction  in  torts  and  crimes. (e). 
§  243,  There  has  been,  of  late,  an  extension  of  locality, 
even  as  to  maritime  jurisdiction;  as,  for  example,  by  act  of 
congress  of  February  20,  1845,  which  act  has  been  sustained 
as  constitutional,  not  on  the  ground  of  the  j)ower  of  congress 
to  regulate  commerce,  but  on  the  ground  that  the  jurisdiction 
of  admiralty  is  not  confined  to  tide-waters,  but  extends  to  all 
public  navigable  lakes  and  rivers  where  commerce  is  carried 
on  between  different  states,  or  with  a  foreign  nation,  and, 
therefore,  to  our  northern  lakes.(/)     The  court  say:   "If  this 
law,  therefore,  is  constitutional,  it  must  be  supported  on  the 
ground  that  the  lakes  and  navigable  waters  connecting  them 
are  within  the  scope  of  admiralty  and  maritime  jurisdiction, 
as  known  and  understood  in  the  United  States  when  the  con- 
stitution was  adopted.     If  the  meaning  of  these  terms  was 
now,  for  the  first  time,  brought  before  this  court  for  considera- 
tion, there  would,  we  think,  be  no  hesitation  it  saying  that 
the  lakes  and  their  connecting  waters  were  embraced  in  them. 
These  lakes  are,  in  truth,  inland  seas.     Different  states  border 
on  them  on  one  side,  and  a  foreign  nation  on  the  other.     A 

((Z)lbi(L  p.  45G,  ^  1073.  (/)Genesee  Chief,  12  How.  453*, 

(e)  Waring  v.  Clarke,  5  How.  458,       overruliug  prior  cases. 
459. 


ADMIRALTY.  255 

great  and  growing  commerce  is  carried  on  upon  them  between 
different  states  and  a  foreign  nation,  whicli  is  subject  to  all 
the  incidents  and  hazards  that  attend  commerce  on  the  ocean. 
Hostile  fleets  have  encountered  on  them,  and  ijrizes  have 
been  made,  and  every  reason  which  existed  for  the  grant  of 
admiralty  jurisdiction  to  the  general  government  on  the  x\t- 
lantic  states,  applies  with  equal  force  to  the  lakes.  There  is 
an  equal  necessity  for  the  prize  power  of  the  admiralty  court 
to  administer  international  law,  and  if  the  one  cannot  be  es- 
tablished, neither  can  the  other. 

"Now  there  is  certainly  nothing  in  the  ebb  and  flow  of  the 
tide  that  makes  the  waters  peculiarly  suitable  for  admiralty 
jurisdiction,  nor  anything  in  the  absence  of  a  tide  that  renders 
it  unfit.  If  it  is  a  public  navigable  water,  on  which  com- 
merce is  carried  on  between  different  states  or  nations,  the 
reason  for  the  jurisdiction  is  precisely  the  same.  And  if  a 
distinction  is  made  on  that  account,  it  is  merely  arbitrary, 
without  any  foundation  in  reason,  and,  indeed,  would  seem  to 
be  inconsistent  with  it."  However,  it  was  said  that  the  dis- 
tinction was  proper  in  England,  as  a  boundary  between  pub- 
lic and  private  rivers,  and  also  in  the  original  thirteen  states, 
wherein  the  far  greater  part  of  the  navigable  waters  were 
tidal.  ((/) 

A  late  decision,  reiterating  the  doctrine  of  the  abolition  of 
the  tide-water  test,  construes'  the  statute  of  1845  as  restrict- 
ive, instead  of  enlarging  in  its  effects,  and,  therefore,  as  con- 
hning  the  jurisdiction  of  the  courts  to  contracts  and  torts, 
and  excluding  cases  of  prize.  And,  moreover,  it  held  that 
the  entire  act  was  obsolete,  excepting  only  the  clause  allow- 
ing trial  by  jury  if  requested,  and  that,  by  the  act  of  1789, 
the  courts  had  general  jurisdiction  on  the  lakes  as  well  as 
high  seas.(/?) 

The  doctrine  has  been  applied  to  a  case  of  collision  on  the 

(^)Ibid,  pp.  454,  455.  ship  canal,   connecting    naviirable 

(A)The  Eagle,  8  Wall.  23.  waters  subject   to  admiralty  juris- 

And  it  is  held,  accordingly,  that  a  diction,  is  cognizable  in  admiralty, 

collision  occurring  on  an  artificial  The  Oler,  2  Hugh,  12. 


2i)C)  ADMIRALTY. 

^lississippi  river  above  the  limit  of  tide  -  water,  (i)  And  on 
the  Alabama  river,  though  wholly  within  the  limits  of  a  single 
state. (,/)  On  this  the  court  say:  "When  the  exercise  of  ad- 
miralty and  maritime  jurisdiction  over  its  public  rivers,  j)orts 
and  havens  was  surrendered  by  each  state  to  the  government 
of  the  United  States,  without  an  exception  as  to  subjects  or 
places,  this  court  cannot  interpolate  one  into  the  constitution 
or  introduce  an  arbitrary  distinction  which  has  no  foundation 
in  reason  or  precedent."  It  was  also  applied  to  a  collision 
on  the  Yazoo,  in  the  state  of  Mississippi,  and  it  was  held 
therein  that  the  fact  that  a  navigable  river  was  sometimes 
unnavigable,  by  reason  of  low  water,  made  no  difference  in 
the  question  of  jurisdiction. (A) 

In  a  case  of  collision,  locality  is  the  test,  and  it  is  not 
necessary  to  allege  that  it  occurred  while  either  of  the  ves- 
sels was  engaged  in  foreign  commerce,  or  commerce  between 
the  states.  Nor  does  it  matter  that  it  occurred  within  the 
body  of  a  county.  (/) 

And  so,  if  a  contract  for  affreightment  is  to  be  performed 
between  two  ports  of  the  same  state,  it  may  be  enforced  in 
admiralty  by  a  proceeding  in  rem.  It  is  only  requisite  that 
the  contract  be  for  transportation  on  navigable  waters  to 
which  the  general  jurisdiction  of  admiralty  extends. (??i) 

But  the  principle  does  not  apply  to  an  action  for  wages  on 
services  rendered  on  a  canal  not  connecting  different  territo- 
ries, or  states,  or  navigable  waters,  and  not  if  even  a  minor 
part  of  the  voyage  be  through  navigable  waters,  (n) 

When  an  action  is  founded  upon  the  power  of  congress  to 
regulate  commerce  between  the  states,  it  is  requisite  that 
when  the  action  arose  the  vessel  libelled  should  have  been 
actually  engaged  in  foreign  or  inter-state  commerce. (o) 
And  it  is  held  that  although  a  vessel  does  not  itself  go  from 

(«)Fretz  V.  Bull,  12  How.  468.  (?)Propeller  Commerce,  1  Black, 

(j) Jackson  v.  Steamboat,  20  How.       578,  580. 
29^-  («OThe  Belfast,  7  Wall.  fiSl. 

(A:)Nelsoii    v.    Leland,   22    How.  («)McCormick    v.   Ives,   1    Abb. 

^^-  Adm'r  R.  421. 

(o)Propeller  Swan,  6  Ben.  45. 


ADMIRALTY.  257 

state  to  state,  yet  it  is  subject  to  the  power  of  Congress  to 
regulate,  if  it  is  within  a  state  employed  in  transporting 
goods  destined  for  other  states,  or  goods  brought  into  the 
state  from  another,  since  the  fact  that  several  different  and 
independent  agencies  are  employed  in  transporting  a  com- 
modity, some  acting  entirely  within  the  state  and  some> 
through  two  or  more  states,  cannot  in  any  manner  affect  the 
character  of  the  transaction.  (/>)  But  it  is  different  where 
vessels  are  exclusively  engaged  in  the  internal  commerce  of  a 
state,  (^j-) 

Where  the  larger  part  of  a  voyage  is  upon  waters  subject 
to  admiralty  jurisdiction,  that  jurisdiction  is  not  ousted  by 
the  fact  that  the  termination  is  upon  water  of  a  different 
character,  as  a  canal. (/•) 

§  244.  Admiralty  jurisdiction  is  exercised  in  two  modes — 
in  rem  and  in  personam;  the  former  being  applicable  espe- 
cially where  a  lien  exists  or  a  capture  is  made. 

It  has  been  held,  indeed,  that  it  is  a  distinguishing  and 
characteristic  feature  of  a  suit  in  admiralty,  that  the  vessel 
or  thing  proceeded  against  is  itself  seized  and  impleaded  as 
the  defendant,  and  is  judged  and  sentenced  accordingly; 
whereas,  by  the  common  law  process,  propert}^  is  reached 
only  through  a  personal  defendant,  and  only  to  the  extent  of 
his  title,  so  that  the  title  of  a  purchaser  can  never  be  better 
than  that  possessed  by  the  personal  defendant. (s) 

In  order,  however,  that  the  jurisdiction  in  rem  shall  attach 
for  any  purpose,  there  must  be  an  actual  seizure  and  posses- 
sion by  the  marshal.  "In  admiralty,  all  parties  who  have  an 
interest  in  the  subject  of  the  suit,  the  res,  may  appear,  and 
each  may  propound,  independently,  his  interest.  The  seiz- 
ure of  the  res,  and  the  publication  of  the  monition,  or  in- 
vitation to  appear,  is  regarded  as  equivalent  to  the  particular 
service  of  process  in  the  courts  of  law  and  equity.  But  the 
res  is  in  no  other  sense  than  this  the  representative  of  the 

(j9)The  Daniel  Ball,  10  Wall.  565.  (r)The  Robert  Morris,  1  VYtill.  Jr. 

(g)Tlie  Montauk,  47  111.  335.  33. 

(s)Tlie  Moses  Taylor,  4  Wall.  427. 
V.  1—17 


2-,  3  ADMIRALTY. 

whole  world.  But  it  follows  that  to  give  jurisdiction  in  rem 
there  must  have  been  a  valid  seizure,  and  an  actual  control 
of  the  ship  by  the  marshal  of  the  court;"  and  hence,  where  a 
sheriff  has  a  prior  levy  on  it  by  process  from  a  state  court, 
there  can  be  no  jurisdiction.  But  in  the  case  in  which  this  was 
decided  four  of  the  judges  dissented  from  the  latter  point — 
the  suit  being  for  seamen's  wages — and  held  that  this  is  en- 
titled to  priority  over  all  others,  and  that  state  courts  have  no 
right  to  obstruct  the  United  States  courts  in  their  legitimate 
sphere;  and  they  lay  down,  as  indisputable,  the  following 
principles:  "The  lien  of  seamen  for  their  wages  is  prior  and 
paramount  to  all  other  claims  on  the  vessel,  and  must  first  be 
paid.  By  the  constitution  and  laws  of  the  United  States  the 
only  court  that  has  jurisdiction  over  this  lien,  or  authority  to 
enforce  it,  is  the  court  of  admiralty;  and  it  is  the  duty  of 
that  court  to  do  so.  The  seamen,  as  a  matter  of  right,  are 
entitled  to  the  process  of  the  court  to  enforce  the  payment 
promptly,  in  order  that  they  may  not  be  left  penniless,  and 
without  the  means  of  support  on  shore ;  and  the  right  to  this 
remedy  is  as  well  and  firmly  established  as  the  right  to  the 
paramount  lien.  No  court  of  common  law  can  enforce  or  dis- 
place this  lien.  It  has  no  jurisdiction  over  it,  nor  any  right  to 
obstruct  or  interfere  with  the  lien,  or  the  remedy  which  is 
given  the  seaman.  A  general  creditor  of  the  ship-owner  has 
no  lien  on  the  vessel,  and  when  she  is  attached  (as  in  this 
case)  by  process  from  a  court  of  common  law,  nothing  is 
taken,  or  can  be  taken,  but  the  interest  of  the  owner  remain- 
ing after  the  maritime  liens  are  satisfied.  The  seizure  does 
not  reach  them;  the  thing  taken  is  not  the  whole  interest  in 
the  ship;  and  the  only  interest  which  this  i^rocess  can  seize  is 
a  secondary  and  subordinate  interest,  subject  to  the  superior 
and  paramount  claims  for  seamen's  wages;  and  what  will  be 
the  amount  of  those  claims,  or  whether  anything  would  re- 
main to  be  attached,  the  court  of  common  law  cannot  know 
until  they  are  heard  and  decided  upon  in  the  coui't  of  admi- 
ralty, "(t) 

(t)T&j\or  V.  Carry],  20  Hew.  591. 


A1>M1KAI/1'Y.  25 1> 

I  believe  this  ease  has  never  been  overruled ;  but  it  does 
certainly  seem  that  the  dissenting  judges  had  by  far  the 
greater  weight  of  reason  with  them. 

§  24:5.  In  order  to  confer  a  jurisdiction  in  rem  it  is  not 
necessary  that  the  ship  actually  enter  upon  the  performance 
of  a  maritime  contract,  or  that  the  breach  occur  during  a  voy- 
age. The  obligation  results  not  from  the  performance,  but 
from  the  contract  itself,  and  the  contract  binds  the  ship  in 
specie  whenever  made ;  so  that,  if  there  is  a  refusal  to  take 
on  board  a  cargo  or  passenger  to  be  conveyed,  there  is  a  lien 
upon  the  vessel  itself,  and  the  party  aggrieved  is  not  remitted 
to  an  action  in  personam  against  the  master  or  owner.(M)  It 
is  different  in  contracts  which  do  not  create  a  lien  until  per- 
formance; as,  for  example,  for  repairs  or  supplies.  If  a 
master  refuse  to  allow  the  repairs  or  receive  the  supplies  the 
action  is  in  personam. (r^) 

§  246.  i'roceedings  in  rem,  and  in  the  name  of  the  vessel 
itself,  have  been  made  exclusive  in  the  United  States  courts 
by  act  of  congress,  so  that  a  stiitute  of  California,  conferring 
such  jurisdiction  upon  the  state  courts,  was  declared  inoper- 
ative, although  it  might  have  been  otherwise  in  the  absence 
of  the  congressional  act.(^f)  And  so  it  has  been  held  that  a 
state  law  cannot  give  a  lien  to  be  enforced  against  a  vessel 
by  a  proceeding  in  rem,  even  to  a  resident  of  the  home  port, 
and  against  a  vessel  whose  owners  reside  in  the  same  port, 
if  the  vessel  plies  between  the  home  port  and  a  port  of 
another  state  ;(^)  although,  in  any  case,  an  action  in  per- 
sonam may  be  brought  against  the  owners  of  such  a  vessel  for 
negligence  in  transportation.  (?/) 

For  a  breach  of  a  contract  to  carry  a  passenger  from  one 
state  to  another  the  remedy  is  a  proceeding  in  rem  in  admi- 
ralty. (?) 

Yet,  when  a  claim  for  labor,  or  for  supplies,  in  fitting  out  a 

(tt)Tlio  Pacific,  1  Bhitchf.  oHti.  (:7;)Marshall    v.   Curtis,    5    Busli, 

(f))Ibid,  587.  (Ky.)  ti09. 

/7r)Tlio  Moses  Taylor,  4  Wall.  411.  (y)Rake  v.  Steamboat  Owners,  6 

Sec  Ftjrrau  v.  Hasfonl.  54  Barb.  208.       Busli,  26. 

(s)bteamboat  «.  Loug,  18  O.  St.  52S. 


200  ADMIRALTY. 

vessel  is  presented,  courts  of  admiralty  enforce  a  lien  pro- 
vided therefor  by  the  local  law  of  the  state  where  the  con- 
tract was  made ;  but  if  there  be  no  lien  by  local  law  they  will 
refuse  the  remedy,  (a)  Nor  wOl  they  retain  a  suit  in  rem  for 
the  purpose  of  foreclosing  a  mortgage.  (6) 

In  a  libel  in  rem,  for  supplies  furnished,  the  claimant  is 
bound  to  show  that  the  credit  was  not  given  to  the  owners 
but  to  the  vessel,  or  the  suit  will  not  be  entertained,  (c) 

§  247.  A  seaman's  claim  for  wages  will  be  enforced  in 
admiralty  both  in  jjersonam  and  in  rem.[d)  And  also  an 
action  for  tort  will  be  entertained  both  in  rem  and  in  perso- 
nam, (e) 

As  to  repairs,  a  claim  for  them  can  only  be  enforced  in  rem 
where  the  workman  has  not  parted  with  the  possession  of  the 
vessel. (/)  And,  on  the  other  hand,  ship-owners  cannot  bring 
suit  in  admiralty  in  personam,  or  in  any  way,  against  a  ship- 
wright for  damages  committed  in  the  construction  of  the  ves- 
sel, the  contract  between  them  not  being  regarded  as  mari- 
time, (^)  as  we  shall  notice  still  further  hereafter. 

§  248.  In  general,  whenever  a  proceeding  conjointly  in 
personam  and  in  rem  is  available,  it  is  encouraged ;  since  it 
"avoids  multiplicity  of  suits,  and  saves  needless  repetitions  of 
proofs  and  discussions. "  (/i) 

§  249.  In  matters  of  contract  it  is  held  that  adjudication 
must  not  be  partipJ  but  entire,  and  if  there  be  any  portion  of 
the  subject-matter  of  a  suit  which  is  not  cognizable  in  an 
admiralty  court,  it  will  oust  the  jurisdiction  altogether.  Tlie 
principle  is  thus  stated:  "If  the  contract  of  the  appellee  had 
been  the  ordinary  one  for  repairs  or  supplies  to  a  domestic 
ship,  and  the  only  matter  in  dispute  was  to  whom  the  credit 
was  given  and  who  was  liable  for  the  amount,  it  is  very  clear 
that  it  would  be  a  case  for  admiralty  jurisdiction,  and  the 

(a)The  Infanta,  1  Abb.  Adm.  263.  (/)Cunningliam  p.  Hall,  1  Clirt. 

(6)Tlie  .John  Jay,  3  Cliff.  67.  48. 

(c)The  Prospect,  Ibid,  527.  (<7)Ibid,  p.  46. 

((Z)Sheppard«.Tayloi-,  5Pet.  710.  (/i)The  Sloop  Merchant,!   Abb. 

(e)Manroe  «.  Almeida,  10  Wheat.  Adui.  7. 
486. 


ADMIRALTY.  261 

'Court  would  undoubtedly  be  authorized  to  determine  whether 
Turner  or  the  anticipated  and  contingent  partners  would  be 
liable  to  the  libellant  for  the  money;  and  this  question,  upon 
the  testimony,  could  be  easily  disposed  of.  But,  inseparably 
connected  with  this  maritime  contract,  and  forming  a  part  of 
it,  is  the  agreement  to  become  a  partner  in  a  comj^any  to  be 
formed  to  purchase  the  vessel.  Now,  a  contract  to  form  a 
partnership  to  purchase  a  vessel,  or  to  purchase  anything  else, 
is  certainly  not  maritime;  a  court  of  admiralty  has  no  right 
to  decide  whether  such  a  contract  was  legally  or  equitably 
binding,  nor  to  adjust  the  accounts  and  liabilities  of  the  dif- 
ferent partners.  These  questions  are  altogether  outside  of  the 
jurisdiction  of  the  court,  and  yet  the  amount  actually  due  to 
the  libellant,  by  whomsoever  it  is  to  be  paid,  cannot  be  decided 
until  these  questions  are  first  examined  and  determined.  And 
r consider  it  to  be  a  clear  rule  of  admiralty  jurisdiction  that, 
although  the  contract  which  the  party  seeks  to  enforce  is 
maritime,  yet.  if  he  has  connected  it  inseparably  with  anotlier 
contract  over  which  the  court  has  no  jurisdiction,  and  they  are 
so  blended  together  that  the  court  cannot  decide  one  with  jus- 
tice to  both  parties  without  disjjosing  of  the  other,  the  party 
must  i-esort  to  a  court  of  law  or  a  court  of  equity,  as  the  case 
may  require,  and  the  admiralty  court  cannot  take  jurisdiction 
of  the  controversy.  The  case  of  Grant  v.  Po'iUon  was  decided 
upon  this  ground  at  the  last  term  of  the  supreme  court.  20 
How.  162. 

"If  the  contract  for  repairs,  and  for  the  partnership,  had 
been  separate  contracts,  there  would  be  no  doubt  of  the  juris- 
diction ;  and  so,  also,  if  the  partnership  had  related  to  some 
collateral  matter.  But,  according  to  the  testimony,  the  agree- 
ment to  repair  the  boat  and  to  become  part  owner  of  her,  with 
the  libellant  and  others,  were  but  parts  of  one  and  the  same 
contract,  and  in  relation  to  one  and  the  same  thing — that  is, 
the  boat  to  be  repaired;  and  this  court  cannot  adjust  the 
rights  and  liabilities  of  the  parties  upon  one  portion  of  the 
contract,  and  leave  the  other  to  be  litigated  in  another  court. 
If  it  lias  not  jurisdiction  over  the  whole  contract,  it  could  not, 
without  great  injustice,  disjjose  of  a  part,  and  compel  the 


2(52  ADMIRALTY. 

piiity  to  pay  money  on  one  portion  of  it,  and  leave  it  to 
aiiotlior  court  to  decide  whether  he  had  not  claims  against 
the  lil)ellant,  upon  the  partnership  branch  of  it,  which  ought 
to  have  been  adjusted  before  the  account  for  work  on  the 
vessel  was  paid.  *  *  *  *  I  have  said  nothing  of  the 
proceedings  in  the  state  court  of  equity,  to  which  the  appel- 
laut  refers  in  his  answer.  They  have  not  been  filed  in  the 
case,  and  this  court  cannot,  therefore,  regard  them  as  open 
to  consideration  here.  Certainly,  if  the  same  question  between 
the  same  parties,  upon  the  same  subject-matter,  were  pend- 
ing in  a  state  court  of  competent  jurisdiction  to  decide  upon 
all  the  rights  in  controversy,  this  court  would  refuse  to  enter- 
tain a  suit  upon  any  portion  of  the  matters  so  in  litigation  in 
the  state  court. "(i) 

;j  250.  In  the  above  extract  it  is  declared  that  a  vessel 
[)aitnership  is  not  a  subject  of  admiralty  jurisdiction,  where 
the  matter  of  partnership  is  the  owning  of  the  vessel.  The 
principle,  likewise,  extends  to  the  operations  of  a  vessel;  as, 
for  example,  if  parties  make  an  agreement  to  share  profits  in 
a  certain  ratio,  one  contributing  the  vessel,  and  the  other  his 
skill  and  attention,  this  is  held  to  be  no  maritime  contract  of 
which  admiralty  could  take  cognizance. (J) 

On  the  same  principle,  admiralty  cannot  adjudicate  ques- 
tious  of  property  between  the  mortgagee  of  a  vessel  and  one 
who  has  purchased  under  a  mortgage  given  by  a  majority  of 
the  owners,  and  has  been  ejected  by  the  others,  who  did  not 
join. (A)  However,  this,  also,  goes  on  the  principle  that 
mortgages  are  not  subjects  of  admiralty,  as  we  shall  see  here- 
after. 

As  a  consequence  of  partnership  matters  not  being  sub- 
jects of  admiralty  jurisdiction,  the  courts  will  not  adjudge  an 
accounting  between  part  owners  ;(f)  that  is  to  say,  where  the 
accounting  is  the  principal  thing;  for  if  it  be  incidental 
merely,  it  will  not  oust  the  jurisdiction:  the  rule  being  that 

(^Turner    v.     Beacham,     Tany,  Steamer  Petrel  u.  Dumont,  "iS  Ohio 

5*^7.  St.  602. 

(7)  Ward  «.  Thompson,  22  How.  {Z)Morgan  w.  Tapscott,  6Ben.  2;V2. 

334.     And  so  as  to  the  Ohio  river.  (i)Steamboat  v.  Phcebus,  182. 


ADMIRALTY.  263 

if  a  court  has  proper  cognizance  of  a  principal  thing,  it  has 
also  of  the  incident,  although  the  incident  would  not,  of  itself, 
and  standing  alone,  be  within  the  jurisdiction.  (?«.) 

It  makes  no  difference  that  the  claim  of  a  part  owner 
arises  on  the  water.  So,  even  where  a  part  owner  dissents 
from  a  voyage,  he  cannot,  in  admiralty,  sue  for  the  use  or 
destruction  of  his  share  of  the  outfits  during  the  voyage. (w) 

The  general  principle  is  thus  stated:  "When  it  is  said  that 
the  admiralty  has  no  jurisdiction  in  matters  of  account,  I 
understand  the  meaning  to  be — First,  if  the  settlement  of  the 
account  is  the  sole  object  of  the  suit,  it  is  clear  that  the  court 
has  not  jurisdiction,  although  it  might  have  over  each  partic- 
ular item.  Second,  when  it  is  not  the  sole  object,  if  it  is 
apparent,  from  the  pleadings,  that  it  is  one  j)rincipal  object, 
though  not  the  sole  one,  and  the  accounts  are  long,  and  intri- 
cate, and  multifarious,  the  court  will  decline  to  take  jurisdic- 
tion. It  will  not,  as  observed  by  Lord  Stowell,  allow  its 
jurisdiction  to  be  used  as  a  peg  to  hang  a  case  upon  which 
properly  belongs  to  another  forum.  When  the  account  arises 
incidentally,  it  has  been  pointedly  said  that  the  court  holds 
itself  bound  to  move  within  restricted  limits.  But  it  is  very 
clear  that  the  jurisdiction  is  not  excluded  by  the  simple  fact  of 
there  being  cross-demands.  In  all  cases  where  there  are 
such  incidentally  arising  in  a  case,  it  is  a  question  addressed 
to  the  sound  discretion  of  the  court  whether  it  will  take  cog- 
nizance of  the  ease  or  not,  and  to  be  determined  by  the  gen- 
eral principles  before  stated. "(o) 

Under  this  it  has  been  held  that,  as  a  court  of  admiralty 
has  jurisdiction  to  decree  a  fishing  bounty  to  persons  engaged 
in  the  cod-fishery,  it  may  incidentally  act  upon  a  claim  for 
an  account  of  the  fish  taken. (  p)        , 

§  251.  The  matter  of  title  to  ships  has  undergone  a  revo- 
lution in  England.  Formerly,  the  courts  of  admiralty  en- 
tertained, without  scruple,  a  jurisdiction  in  cases  of  title,  as 
well  as  possession ;  but,  of  late,  they  will  only  entertain  ques- 

(TO)Davison  v.  Sciil-skins,  2  Paine,  (o)The  Larch,  3  Ware,  34. 

333.  (p)Thii  Lucy  Anne,  3  Ware,  253. 

(»)The  Marengo,  1  Low.  53. 


204  ADMIRALTY. 

tions  of  title  where  they  are  merely  incidental,  and  not  com- 
plicated in  their  nature.  But  the  former  rule  is  held  to  be 
the  true  one  in  the  United  States. (5)  And  suits  for  title  are 
called  petitory  suits. 

No  jurisdiction  has  ever  been  exercised,  in  either  country,  to 
foreclose  a  mortgage ;  and  the  United  States  supreme  court 
say :  "It  has  been  repeatedly  decided  in  the  admiralty  and 
common  law  courts  in  England  that  the  former  have  no  juris- 
diction in  questions  of  property  between  a  mortgagee  and  the 
owner.  No  such  jurisdiction  has  ever  been  exercised  in  the 
United  States.  No  case  can  be  found  in  either  country  where 
it  has  been  done.  In  the  case  of  The  Neptune,  3  Hagg.  Adm.  E. 
132,  Sir  John  Nicholl,  in  giving  his  judgment,  observes: 
'  Now,  upon  questions  of  mortgage,  the  court  has  no  jurisdic- 
tion, whether  a  mortgage  is  foreclosed;  whether  a  mortgagee 
has  aright  to  take  possession  of  a  chattel  personal;  whether 
he  is  the  legal  or  only  the  equitable  owner ;  and  whether  a  right 
of  redemption  means  that  a  mortgagee  is  restrained  from  sell- 
ing in  repayment  of  his  debt  till  after  the  time  specified  is 
passed.  The  decision  of  these  questions  belongs  to  other 
courts  ;  they  are  not  within  the  jurisdiction  or  province  of  the 
courts  of  admiralty,  which  never  decide  questions  of  property 
between  the  mortgagee  and  owner.'  This  is  not  so  [merelj^] 
because  such  a  jurisdiction  had  been  denied  by  the  jealousy 
of  tlie  courts  of  the  common  law.  Its  foundation  is  that  the 
mere  mortgage  of  a  ship,  other  than  that  of  an  hypothecated 
bottomry,  is  a  contract  without  any  of  the  characteristics  or 
attendants  of  a  maritime  loan,  and  is  entered  into  by  the 
parties  to  it  without  reference  to  navigation  or  perils  of  the 
sea.  It  is  a  security  to  make  the  performance  of  the  mort- 
gagor's undertaking  more  certain,  and,  whilst  he  continues 
in  possession  of  the  ship,  disconnecting  the  mortgagee  from 
all  agency  and  interest  in  the  employment  and  navigation  of 
her,  and  from  all  responsibility  for  contracts  made  on  her  ac- 
count. Such  a  mortgage  has  nothing  in  it  analogous  to  those 
contracts  which  are  the  subjects  of  admiralty  jurisdiction. 

{7)Thc'  Schooner  Tillon,  5  Mason,  472;  Taylor  v.  lioyal  Saxon,  1  Wall.  Jr. 
"23. 


ADMIKALTY.  2G5 

In  such  a  case  the  ship  is  the  object  for  the  accomplishment 
of  the  contract,  without  any  reference  to  the  use  of  her  for 
such  a  purpose.  There  cannot  be,  then,  anything  maritime 
in  it.  A  faikire  to  perform  such  a  contract  cannot  make  it 
maritime.  A  debt  secured  by  the  mortgage  of  a  ship  does 
not  give  the  ownership  of  it  to  the  mortgagee.  He  may  use 
the  legal  title  to  make  the  ship  available  for  its  payment.  A 
legal  title  passes  conditionally  to  the  mortgagee.  Where  there 
has  been  a  failure  to  pay  he  cannot  take  the  ship  manitforti,  but 
he  must  resort  either  to  a  court  of  equity  or  to  statutory  rem- 
edies for  the  same  purpose,  when  they  exist,  to  bar  the  mort- 
gagor's right  of  a  redemption  by  a  foreclosure,  which  is  to 
operate  at  such  time  afterwards  when  there  shall  be  a  fore- 
closure without  a  sale,  as  the  circumstances  of  the  case  may 
make  it  equitable  to  allow.  *****  Courts  of  ad- 
miralty have  always  taken  the  same  view  of  a  mortgage  of  a 
ship  and  of  the  remedies  for  the  enforcement  of  them  that 
courts  of  chancery  have  done  of  such  a  mortgage  and  of  any 
other  mortgaged  chattel.  But  from  the  organization  of  the 
former  and  its  modes  of  proceeding  they  cannot  secure  to  the 
parties  to  such  a  mortgage  the  remedies  and  protection  which 
they  have  in  a  court  of  chancery.  They  have,  therefore, 
never  taken  jurisdiction  of  such  a  contract  to  enforce  its  pay- 
ment, or  by  a  possessory  action  to  try  the  title,  or  a  right  to 
the  possession  of  a  ship.  It  is  true  that  tlie  policy  of  com- 
merce and  its  exigencies  in  England  have  given  to  its  admi- 
ralty courts  a  more  ample  jurisdiction  in  respect  to  mort- 
gages of  ships  than  they  had  under  its  former  rule,  as  that 
has  been  given  in  tliis  opinion.  But  this  enlarged  cognizance 
of  mortgages  of  ships  has  been  given  there  by  statutes  3  and 
4  Vic.  c.  0.5.  Until  that  shall  be  done  in  the  United  States, 
by  congress,  the  rule  in  this  particular  must  continue  in  the 
admiralty  courts  of  the  United  States  as  it  has  been."(r) 

The  distinction  appears  in  part  to  be  this :  that  a  court  of 
admiralty  can  only  pass  on  legal  titles,  and  not  on  equita- 
ble, (s) 

(?-)Bogart  V.  Steaiiihoat,  ]7  How.  (.vjThe  William  D.  Rice,  3  Wail, 

401 ;  Morgan  w.Tapscott,  5  Ben.  252.       137. 


2(16  ADMIRALTY. 

§  252.  A  contract  to  build  a  ship  is  not  regarded  as  a 
maritime  contract,  and  is,  therefore,  not  cognizable  in  admi- 
riiltv.  And  the  ground  of  this  is  that  it  is  a  contract  made 
on  hiiul.  and  to  be  performed  on  hind.(0  And  the  principle, 
as  a  matter  of  course,  extends  to  furnishing  materials  for  the 
purpose  of  building,  or  fitting  out  the  construction  of  a 
ship:(»)  and  it  is  not  changed  by  the  locality  of  the  construc- 
iion.  applying  where  the  building  is  on  the  shore  of  tide-water^ 
and  intended  for  ocean  navigation. (f) 

In  consequence,  the  state  legislatures  may  create  such  liens 
as  they  deem  just  and  expedient,  provided  they  do  not 
amount  to  regulations  of  commerce  :(w)  and  the  state  courts 
have  full  power  to  enforce  such  lien. (a-) 

However,  repairs  of  a  vessel  fitting  it  for  the  navigation  of 
the  sea  are  recognized  as  maritime  in  their  nature  ;(/y)  the 
basis  for  which  distinction  seems  to  be  that  mere  repairs  are 
made  on  the  water;  and  so,  if  they  are  so  extensive  as  to 
require  the  vessel  to  be  drawn  out  of  the  water  into  a  ship- 
yard, the  matter  passes  under  the  same  rule  as  the  building, 
or  furnishing  materials  or  equipments. (^)  But  the  distinc- 
tion between  repairs  made  on  the  water  and  those  on  ship- 
ways  is  formally  rejiudiated  by  Justice  Nelson,  and  both  are 
made  to  be  maritime  contracts,  provided  it  is  the  ship-master 
who  owns  the  yard,  and  is  employed  to  make  the  repairs ;  this 
being  then  regarded  as  part  of  the  work  of  the  ship-master, 
whereas  it  is  different  if  the  yard  is  owned  by  another,  and 
hired  for  the  j)urpose  of  repairs.  But  these  distinctions  look 
to  me  hopelessly  confused. (a) 

A  contract  to  furnish  materials  to  repair  a  vessel  is  not  a 
maritime  contract.  (6) 

§  253.  But  an  actual  furnishing  of  supplies  is,  except  in  a 

(«)Ferry  Co.  v.  Beers,  4  How.  302.  (^)Reppert  v.  Kobinson,   Taney, 

(w)I.oroy  V.  Latham,  22  How.  132.  497. 

(c)Yoiing  V.  Ship,  2  Clitf.  38.  (2)Hansom  v.  Mayo,  3  Blatch.  70. 

(w)Ed\vardsv.Elliott,21Wall.  552.  (fl)Wortman  v.  Griffith,  3  Blatch. 

(.r)Sinton  v.    Steamboat,  4G  Ind.  529. 

47tj;    Thorsen  v.  Schooner,  26  Wis.  (J)AA'erill».Stearaboat,  20  La.  An. 

496  ;  Mitchell  v.  Steamboat,  45  Mo.  432 ;    Hogan  v.  Steamboat,  40  Mo. 

67-  265. 


ADMIRALTY.  267 

home  port ;  (c)  or  for  a  voyage  between  two  ports  of  the  same 
state ;  (d)  or  where  the  furnisher  is  also  a  co-owner,  (e) 

Yet  a  refusal  to  receive  supplies  is  not  a  matter  of  cogni- 
zance in  admiralty,  (/)  which  is  upon  the  principle  that  an 
executory  contract  is  not  actionable  on  breach  in  the  court 
of  admiralty, ((/)  but  only  ui  a  court  of  common  law.(/i) 

§  254.  A  lien  is  created  by  maritime  services  rendered, 
which  may  be  enforced  by  a  proceeding  in  rem.  But  prelimi- 
nary contracts  leading  to  maritime  contracts,  of  whatever 
sort,  are  not  cognizable  in  admiralty ;  as,  for  example,  a 
preliminary  agreement  to  execute  a  charter-party  for  a  voy- 
age ;(t)  a  principle  stated  above  as  to  all  executory  contracts. 
And  where  a  maritime  lien  exists,  the  authority  to  enforce  it 
in  rem  is  exclusive  in  the  United  States  courts. (/) 

To  give  a  maritime  character  to  services  rendered  on  or  in 
a  vessel,  they  must  be  connected  with  the  betterment  or 
reparation  of  the  vessel,  or  else  in  actual  navigation,  or  else 
supplies  for  or  relief  to  those  conducting  navigation. (/i) 
Hence,  where  one  is  employed  to  visit  a  vessel  in  port,  venti- 
late it,  keep  the  pumps  in  order,  etc.,  he  cannot  sue  in  ad- 
miralty for  the  compensation.  Bui:  if,  in  the  course  of  such 
employment,  a  necessity  arises  that  he  shall  navigate  the 
vessel  from  one  anchorage  to  another,  he  may  recover  for  such 
removal ;(/)  and,  as  to  seamen's  wages,  they  may  be  re- 
covered in  rem  against  a  vessel  plying  on  navigable  waters, 
although  the  waters  are  entirely  within  the  jurisdiction  of  one 
state  ;(»()  and  where  one  claims  wages  as  master,  he  may 
enforce  the  claim  in  rem,  even  if  he  be  also  a  i^art  owner — the 
two  relations  being  separable. («) 

The  matter  of  pilotage  is  a  kind  of  floating  jurisdiction,  it 

(c)Boy'.an  «.  Hteuniboiit,  40  Mo.  252.  (<)Tlio  Schooner  Tribune,  3  Sumn. 

(d)Maguire  v.  (Jard,  21  How.  250,  147. 

(Wayne,  ,J. ,  dissenting.)  (i)Tlu!  Belfast,  7  Wall.  (J43. 

(e)H:ill  V.  Hud.son,  2  Sprague,  65.  (A-)Gurney    ».    Crockett,    1    Abb. 

(/)  The  Cabarga,  :5  Blatch.  76.  Adni.  4!t2. 

ifj)Cox  V.   Murray,   1  Abb.   Adm.  (?)lbid. 

341.  (m)The  Sarah  Jane,  1  Lowell,  203, 

(^.)The  Pauline,  1  Biss.  390.  and  cases  cited. 
(ft)Dextcr  t).  Monroe,   2  Sprague,  40. 


208  ADMIRALTY. 

being  held  that,  so  far  as  congress  has  legislated  upon  it,  the 
authority  of  the  national  courts  is  supreme  and  conclusive ; 
wliile,  further  than  this,  the  matter  is  under  state  regulation. (o) 
But  the  admiralty  courts  may  enforce  the  rights  given  by 
state  law,  on  the  principle  that  a  party  forfeits  nothing  by 
going  into  a  United  States  tribunal.(j9)  And  that,  too,  even 
in  cases  where  the  state  law  has  given  a  lien  to  a  pilot,  in 
certain  cases,  whose  services  have  been  tendered  and  ref  ased,(r7) 
as  where  half-pilotage  is  allowed  to  him  who  first  tenders  his 
services  to  a  vessel. (r)  And  this  even  extends  to  a  canal-boat 
in  the  harbor  of  New  York.(s) 

And  a  state  cannot  change  the  character  of  maritime  con- 
tract by  legislation,  for  this  would  be  to  limit  admiralty 
jurisdiction  itself. (f) 

Inasmuch  as  wharfage  is  not  appurtenant  to  any  other 
business  than  commerce,  and  as  it  is  essential  to  this,  a  con- 
tract relating  to  wharfcige  is  regarded  as  a  maritime  contract; 
and 'even  with  regard  to  a  canal-boat  in  navigable  waters, (m) 
However,  a  claim  for  wharfage  against  a  domestic  vessel  is 
not  cognizable  in  admiralty,  and  the  state  courts  have  the 
jurisdiction,  (t") 

The  cost  of  advertising  a  vessel  for  sea,  portage,  commis- 
sions for  procuring  freight,  wages  of  stevedores  or  lightermen, 
services  in  compressing  cotton  into  smaller  bulk  to  be  loaded 
as  cargo,  are  all  excluded  from  admiralty  jurisdiction  as  not 
being  maritime  services;  and  so  with  disbursements  and 
advances  by  the  agent  of  a  charterer  of  a  ship.(/r)  A  mari- 
time character  only  attaches  when  the  matter  done,  or  begun 
to  be  done,  regards  the  fitting  out  of  the  vessel  itself  for  a 


(o)The  Lottawanna,  21  Wall.  .i81,  Ben.  62.    And  so,  claims  for  wliarf- 

{ClLfford,  J.,  dissenting.)  age  are  enforceable,  in   admiralty, 

(p) Ex  parte  ^IcSie],  13  Wall.  243.  whether  arising  on  an  express  or 

(<7)The    Brig    America,    1    Low.  implied  contract.     Easton  ex  parte, 

176.  5  Otto,  GS. 

(r)Banta  v.  McXeill,  5  Ben.  74.  (?!)City  of  JefEersonville  v.  B'erry- 

(8)Tlie  Canal-boat  Walsh,  Ibid,  72.  boat,  35  Ind.  19. 

{t)The  Bark  Ala.ska,  3  Ben.  392.  (w)The    Bark     Cunard,     Alcott, 

(w)The    Canal-boat  Treniaine,   5  121. 


ADMIRALTY.    '  269 

voyage,  aid  and  assistance  on  board  in  prosecuting  the  voy- 
age, or  employing  the  vessel  as  a  vehicle. (a;) 

§  255.  Insurance,  and  respondentia  and  bottomry  loans  are 
regarded  as  maritime  contracts,  although  they  are  made  on 
the  land  and  to  be  performed  on  the  hmd,  because  they  relate 
to  maritime  risks. (//) 

§  250.  Salvage  is  a  subject  of  admiralty,  and  consists  of 
services  rendered  in  saving  a  vessel  in  distress  l)y  one  not  an 
owner.  And  one  who  holds  a  mortgage  not  yet  due  is  not 
regarded  as  an  owner,  and  is,  therefore,  entitled  to  compen- 
sation for  salvage  services  ;(r)  and  such  claim  takes  prece- 
dence of  all  })rior  maritime  liens. (ff) 

And  it  is  immaterial  whether  the  services  are  performed 
at  the  request  of  the  owners  or  by  persons  accidentally  fall- 
ing in  with  the  wreck;  and  if  there  are  different  sets  of  sal- 
vors, at  different  times,  rendering  service  to  a  vessel  in  con- 
tinuous peril,  each  is  entitled  to  compensation,  although  the 
separate  service  of  each  would  alone  have  saved  the  vessel. (/;) 
And  so  where  a  dismasted  bark,  rudderless  and  without  an 
anchor,  was  taken  by  a  schooner  to  a  safer  position,  and  left 
there,  and  then  the  schooner  arriving  at  port  gave  intelligence 
of  the  condition  of  the  bark,  whereby  another  vessel  went  out 
and  saved  the  bark,  it  was  held  that  the  schooner  was  enti- 
tled to  compensation. (c)  But  it  is  an  essential  prerequisite 
that  the  vessel  1)e  actually  saved  from  ])eril,  either  from  ship- 
wreck, derelict  or  capture,  as  the  case  may  he.(d)  However, 
it  is  not  necessary  that  the  distress  should  be  actual  or  imme- 
diate, or  tliat  the  danger  should  be  imminent  or  absolute. 
It  is  sufficient  if,  at  the  time  when  the  service  is  rendered,  the 
vessel  has  encountered  any  damage  or  misfortune  which  may 
possibly  expose  her  to  destruction  if  the  service  be  not  ren- 
dered, (c) 

In  order  to  encourage  the  rendering  of  assistance,  courts 
are    liberal    in    compensating   services  of  the  kind,  usually 

(,f)Cox  '/>..Miirr:iy,l  Abb,  Adm.:j4U.  ('^)Ihid. 

(.y)Iiisui"infc   Co.  ».  Dunham,   11  (//)Ad:uiis  t).  Bark,  1  Cliff.  214. 

Wall.    :iO;    Younger  v.   Ins.   Co.  1  (^jNorrLs  »>.  Bark,  1  Cliff.  220. 

Sprague,  243.  (d)]]n(\. 

(z)The  Barney  Eaton,  1  Biss.  240.  («-)Tlie  Saragossa,  1  Ben.  551. 


270 


ADMIRALTY. 


awarding  from  one-third  to  one-half,  and  giving  extra  com- 
pensation to  a  passenger  of  the  rescuing  vessel  who  has 
exerted  himself  in  an  extraordinary  manner,  and  effect- 
ively. (.M 

Passengers  on  hoard  the  vessel  relieved  are,  however,  not 
entitled;  but  with  a  regiment  of  soldiers  being  transported 
under  a  contract  with  the  government,  the  rule  is  different  ;(f/) 
as,  for  example,  where  they  keep  a  ship  from  sinking  by  bail- 
ing out  the  water  admitted  through  a  leak.(/t) 

Salvors  may  mak-e  a  special  contract  before  rendering  serv- 
ices, and  the  conrts  of  admiralty  will  enforce  it,  provided 
they  have  not  taken  advantage  of  the  calamities  of  others  to 
drive  an  unreasonable  bargain.  Where  this  is  the  case  the 
courts  will  withhold  the  remedy. (h  In  order,  however,  to 
bar  a  salvage  claim,  there  must  be  a  contract  for  a  given 
amount,  or  a  binding  engagement  to  pay,  at  all  events, 
whether  successful  or  unsuccessful  in  the  effort. (,/) 

Where  a  vessel  is  found  derelict — that  is,  abandoned — and 
taken  possession  of,  and  brought  into  a  place  of  safety,  the 
rescuer  is  entitled  to  salvage  on  returning  it  to  its  owners. 
But  where  a  bark  was  in  tow  of  a  steamer,  and  was  anchored, 
and  left  for  a  needful  temporary  purpose,  (the  ofiirers  and 
crew  being  on  board  the  steamer,)  but  nothing  having  been 
taken  out  of  the  bark,  and  the  departure  being  with  intent  to 
return  as  soon  as  possible  and  take  the  bark  into  a  place  of 
safety,  and  in  the  absence  of  the  steamer  the  bark  was  found 
by  another  vessel,  it  was  held  the  bark  was  not  derelict. (A) 

A  vessel  is  not  derelict  until  wholly  abandoned  by  the 
master,  without  any  intention  of  returning  to  resume  posses- 
sion.(ij 

Salvage  may  be  forfeited  by  misconduct,  as  by  acts  of 
plundering  by  the  crew  of  the  rescuing  vessel,  showing  a  con- 
nivance of  the  officers,  or  gross  negligence  on  their  part.(^;)i) 

(/)ll)id;  The  Schooner  Charles 
Henry,  1  Ben.  12. 

(/7)The  Merrimac,  1  Ben.  204. 

(/i)The  Merrimac,  1  Ben.  68. 

(OThe  Paint,  1  Ben.  ,545 ;  The 
Anchors,  etc.,  Ibid,  77. 


0)Coffin  t).  Schooner,  1  Cliff.  236. 
(/•)Cromwell    v.    Bark,    1     Clift". 
223, 

(l)The  Attacapas,  3  Ware,  67 
(w)Ihid. 


ADMIRALTY.  271 

Seamen  may  have  a  lien  on  the  savings  of  the  wreck,  and 
also  a  claim  for  salvage,  when  the  wreck  is  partly  saved  by 
their  exertions  at  the  same  time.(??) 

Eafts,  however,  and  coal  barges,  are  not  regarded  as  ves- 
sels, so  as  to  entitle  a  rescuer  to  salvage  services  by  a  lien 
upon  them.(o)  Nor  fiat-boats. (/^)  Although  a  contract  for 
the  use  of  a  barge  is  cognizable  in  admiralty. (7) 

§  257.  A  rigid  supervision  is  exercised  in  admiralty  over  all 
■contracts  made  with  seamen,  who,  as  a  class,  are  proverbi- 
ally helpless.  So,  if  unusual  terms  are- inserted  in  a  con- 
tract, it  must  appear  that  they  were  explained  clearly  to  the 
men,  or  the  contract  will  be  set  aside,  and  the  usual  terms 
enforced.  And  every  contract  must  be  in  writing,  under  act 
of  congress  of  1790. (r)  And  seamen  are  never  presumed  to 
advert  to  refined  distinctions  of  law  when  they  are  not  even 
alluded  to  by  the  terms  of  the  contract. (s) 

§  258.  In  regard  to  transportation,  there  is  no  distinction  be- 
tween a  contract  for  conveying  passengers  and  one  for  convey- 
ing merchandise,  each  giving  rise  to  the  same  liability  and  the 
same  lien  on  the  vessel,!  i()  whether  on  the  ocean  or  on  internal 
navigable  waters. («)  And  a  contract  for  a  charter-party  or 
affreightment  is  always  a  matter  of  admiralty  cognizance, (t;) 
unless  it  be  for  carriage  between  ports  of  the  same  state.  And 
an  action  is  available  to  an  assignee  or  to  the  transferee  of  a 
passage  ticket. (^r) 

§  259.  One  who  advances  monej'^  to  release  a  vessel  seized 
by  the  marshal  in  another  state,  has  a  lien  upon  the  money 
so  advanced  enforceable  in  rem,  in  an  admiralty  court. (.c) 

§  260.  The  question  has  sometimes  arisen  whether,  when 
a  note  or  other  security  has  been  given  for  the  performance 
of  a  maritime  contract,  suit  can  be  brought  upon  it  in  admi- 
ralty, since  a  note  is  a  common  law  contract  in  itself.     It  has 

(n)The  Bowditch,  3  Ware,  71.  (OTlic  ISIoses  Taylor,  4  Wall.  427. 

(f;)Four  Cribs  of  Lumber,  Taney,  (r/)Steamboat   General   Buell,    18 

533.  O.  St.  .'527. 

(p)Leddo  i).  Hughes,  1.5  111.  41.  (?))Morewood«.  Enequist,  23  How. 

(g)The  Dick  Keys,  1  Biss.  408.  493. 

(?-)The  Australia,  3  Ware,  240.  (w)C()bb  «.  Howard,  3  Blatch.  52.5. 

^«)The  Roohambeau,  Ibid,  304.  (a;)The  Hoyle,  4  Biss.  234. 


072  ADMIRALTY. 

l)L'(.n  lifld.  however,  that  a  suit  may  be  maintained  provided  the 
not  I'  be  surrendered,  so  that  the  respondent  will  not  be  liable 
to  anotlier  action  thereon  in  a  common  law  court. (.//)  But 
it  is  made  to  turn  upon  the  question  as  to  whether  the  note 
or  other  securil}',  by  the  law  of  the  place,  extinguishes  the 
original  contract  or  not ;  for,  if  po,  the  original  contract  will 
not  be  enforced  in  admiralty,  and  the  note  must  be  sued  on 
in  a  common  law  court. 

§  201.  In  a  suit  on  a  bottomry  bond,  executed  on  vessel 
and  cargo  by  the  master,  where  it  appeared  that  the  vessel 
was  not  hired,  but  retained  by  the  owners,  through  the  mas- 
ter, and  that  the  cargo  was  property  captured  by  the  United 
States,  a  distinction  was  made  betwen  the  vessel  and  cargo, 
the  former  being  held  under  the  lien,  and  the  latter  dis- 
charged of  it,(^) 

.  §  2(i2.  In  matters  where  the  limitation  of  an  owner's  lia- 
bility is  concerned  in  cases  of  collision,  it  is  held  not  strictly 
necessary  that  the  vessel  be  actually  arrested,  or  that  a  fund 
be  in  the  possession  of  the  court,  although  in  England  this 
must  be  the  case,  or  else  there  must  be  the  existence  of  "a 
state  of  things  amounting  to  an  equivalent  for  the  arrest  of 
the  ship,"(rt) 

§  203.  Much  the  same  distinction  exists  in  regard  to  torts 
which  prevails  in  matters  of  contract ;  that  is,  the  torts  must 
be  strictly  maritime  in  their  nature  ;  and  so,  where  the  owners 
of  a  ship  filed  a  libel  against  a  tug,  and  alleged  that  while  the 
ship  was  at  anchor  and  ready  for  sea  the  tug  took  off  eight 
sailors  and  their  baggage,  against  the  remonstrance  of  the  offi- 
cers of  the  ship,  whereby  the  ship  was  detained  from  the 
voyage  until  new  men  could  be  obtained,  and  the  libel  claimed 
the  demurrage  and  advance  wages  paid  the  deserters,  the 
com-t  intimated  a  doubt  of  the  jurisdiction. (ft) 

Where  a  tort,  however,  is  partly  committed  on  the  land  and 
partly  on  the  high  seas,  the  whole  being  a  continuance — as, 
for  example,  in  the  abduction  of  a  minor,  on  board  a  vessel — it 

(^)Keppert    v.  Robinson,  Taney,  (sjTlie  Othello,  5  Blatch.  342. 

494,  citing   12  Wheat,  611,  3  How.  (a)the  Norwich,  6  Ben.  335. 

573,  and  2  Story,  460.  (5)The  Starbuck,  5  Ben.  53. 


ADMIRALTy.  273 

will  be  cognizable  in  admiralty  ;(c)  although  there  can  be  no 
joinder  of  a  tort  against  two  with  another  against  one  only,  ('/) 
since  this  is  multifarious. 

An  assault  committed  by  a  master  upon  a  seaman,  onboard 
a  ship,  in  a  port  of  the  United  States,  is  cognizable  in  tlie 
admiralty,  even  though  the  act  be  committed  within  the  body 
of  a  county. (e)  And  torts,  or  wrongs,  committed  upon  a 
passenger  on  the  high  seas,  by  the  master  of  a  ship,  are  cog- 
nizable in  admiralty,  whether  they  are  direct  trespasses  or 
consequential  injuries.  On  this.  Story,  J.,  remarks:  "In  re- 
spect to  a  case  like  this,  a  suit  by  passengers  against  the 
master  of  the  ship,  for  continued  wanton  cruelty  and  ill- 
treatment,  is  certainly  entitled  to  be  listened  to  with  atten- 
tion. The  authority  of  a  master  at  sea  is  necessarily  sum- 
mary, and  often  al)Solute.  For  the  time  he  exercises  the 
rights  of  sovereign  control,  and  obedience  to  his  will,  and 
even  to  his  caprices,  becomes  almost  indispensable.  If  he 
chooses  to  perform  his  duties  or  to  exert  his  office  in  a 
harsh,  intemperate  or  oppressive  manner,  he  can  seldom  be 
resisted  by  physical  or  moral  force ;  and,  therefore,  in  a  lim- 
ited sense,  he  may  be  said  to  hold  the  lives  and  personal  wel- 
fare of  all  on  board,  in  a  great  measure,  under  his  arbitrary 
discretion.  He  is,  nevertlieless,  responsible  to  the  law,  and, 
if  he  is  guilty  of  gross  abuse  and  oppression,  I  hope  it  will  be 
found  that  courts  of  justice  are  not  slow  in  visiting  him,  in  the 
shape  of  damages,  with  an  appropriate  punishment. 

"In  respect  to  passengers  the  case  of  the  master  is  one  of 
peculiar  responsibility  and  delicacy.  Their  contract  with 
him  is  not  for  mere  ship-room  and  personal  existence  on 
board,  but  for  reasonal)le  food,  comforts,  necessaries  and 
kindness.  It  is  a  stipulation,  not  for  toleration,  merely, 
but  for  respectful  treatment;  for  that  decency  of  demeanor 
W'hich  constitutes  the  charm  of  social  life ;  for  that  attention 
which  mitigates  evils  without  reluctance,  and  that  prompti- 
tude which  administers  aid  to  distress.  In  respect  to  females 
it  proceeds  yet  further;    it  includes  an  implied  stipulation 

(c)Steele    v.   Thatcher,    i  Ware,  ((Z)lloberts  «.Stomekl,3  Ware, 184. 

94.  (e)lbicl,  p.  188. 

V.  1—18 


274  ADMIRALTY. 

against  general  obscenity,  that  immodesty  of  approach  which 
borders  on  lasciviousness,  and  against  that  wanton  disregard 
of  the  feelings  which  aggravates  every  evil,  and  endeavors, 
b}-  the  excitement  of  terror  and  cool  malignancy  of  conduct, 
to  inflict  torture  on  susceptible  minds.  What  can  be  more 
disreputable,  and,  at  the  same  time,  more  distressing  than 
habitual  obscenity,  harsh  threats  and  immodest  conduct  to 
delicate  and  inoffensive  females?  What  can  be  more  op- 
pressive than  to  confine  them  to  their  cabins  by  threats  of 
personal  insult  or  injury"?  What  more  aggravating  than  a 
malicious  tyranny  which  denies  them  every  reasonable  re- 
quest, and  seeks  revenge  by  witholding  suitable  food  and  the 
common  means  of  relief  in  cases  of  sea-sickness  and  ill  health  ? 
It  is  intimated  that  all  these  acts,  though  wrong  in  morals, 
are  yet  acts  which  the  law  does  not  j^unish ;  that  if  the  per- 
son is  untouched,  if  the  acts  do  not  amount  to  an  assault 
and  battery,  they  are  not  to  be  redressed.  The  law  looks  on 
them  as  unworthy  of  cognizance.  The  master  is  at  liberty  to 
inflict  the  most  severe  mental  sufferings,  in  the  most  tyran- 
nical manner,  and  yet,  if  he  witholds  a  blow,  the  victim  may 
be  crushed  by  his  unkindness.  He  commits  nothing  within 
the  reach  of  civil  jurisprudence.  My  opinion  is  that  the  law 
involves  no  such  absurdit}*.  It  is  rational  and  just.  It  gives 
compensation  for  mental  sufferings  occasioned  by  acts  of 
wanton  injustice,  equally  whether  they  operate  by  way  of 
direct  or  of  consequential  injuries.  In  each  case  the  con- 
tract of  the  passengers  for  the  voyage  is,  in  substance,  vio- 
lated, and  the  wrong  is  to  be  redressed  as  a  cause  of  damage. 
I  do  not  say  that  every  slight  aberration  from  propriety  or 
duty,  or  that  every  act  of  unkindness  or  passionate  folly,  is  to 
be  visited  with  punishment;  but  if  the  whole  course  of  con- 
duct be  oppressive  and  malicious,  if  habitual  immodesty  is 
accompanied  by  habitual  cruelty,  it  would  be  a  reproach  to 
the  law  if  it  could  not  award  some  recompense. "(/) 

The  term  "torts,"  therefore,  includes  consequential  injuries; 
such  as,  at  common  law,  are  actionable  in  case.     And  so, 
where  a  railroad  company  left  piles  driven  in  a  navigable 
(/jChamberlain  v.  Chandler,  3  Mason,  245. 


ADMIRALTY.  275 

river,  so  as  to  injure  a  vessel  passing  on  its  course,  the  com- 
pany were  held  liable. (^) 

Locality  is  the  leading  test  of  jurisdiction  in  torts.  And 
where  a  vessel  took  fire  at  a  wharf,  alleged  to  be  from  the 
negligence  of  the  officers,  and  the  fire  spread  and  consumed 
certain  store-houses  on  the  wharf,  it  was  held  not  to  be  a  case 
for  admiralty  proceedings,  because  the  injury  complained  of 
occurred  on  the  land  and  not  on  the  water. (/j)  And  yet  this 
does  not,  at  first  view,  seem  altogether  in  harmony  with  the 
principle  stated  above,  that,  in  case  of  a  continuous  tort, 
occurring  partly  on  the  water  and  partly  on  the  land,  admi- 
ralty has  jurisdiction.  The  distinction,  however,  is  probably 
this:  that  the  one  is  a  continuous  act  of  tort,  or  trespass; 
the  other  is  consequential,  or  case. 

§  264.  As  to  violations  of  the  revenue  laws,  a  suit  merely 
to  enforce  the  payment  of  duties  must  be  brought  at  common 
law,  and  cannot  be  entertained  in  admiralty;  the  jurisdiction 
of  which  in  rem  only  extends  to  seizures  for  forfeitures  under 
laws  of  impost,  navigation,  or  trade  of  the  United  States. (/) 
And,  even  then,  the  seizure  must  be  made  on  the  water* 
and  not  on  the  land. (J)  However,  actual  possession  by  the 
officers  of  the  law  needs  not  to  be  made,  but  a  constructive 
seizure  is  sufficient  to  give  jurisdiction  in  revenue  cases,  and 
the  action  may  be  in  personam.  And,  having  once  acquired 
regular  jurisdiction,  no  subsequent  irregularity  can  defeat  it; 
or  accident,  as,  for  example,  an  accidental. fire. (/c) 

§  265.  As  to  crimes — that  is,  felonies — it  is  provided  by  con- 
gress that  they  are  only  cognizable  in  admiralty  when  com- 
mitted on  the  high  seas,  or  else  in  some  bay,  etc.,  outside  of 
the  jurisdiction  of  any  state,  or  in  some  place  on  land  exclu- 
sively within  the  United  States  jurisdiction,  as  distinguished 
from  state  jurisdiction ;  as,  for  example,  forts,  arsenals,  dock- 
yards, magazines,  and  the  like.(/)     The  high  seas  may  be 

(^)K.  R.  V.  Tow-boat,  23  How.  214.  (ijThe  Sarali,  8  Wheal.  394. 

(/()Tlie  Plymouth,  3  Wall.  33.  (^-)Tlie  Bolina,  1  Gall.  83. 

(i)?50Chestsof  Tea,  12How.  487;  (i)United     States    «.    Bevans,    3 

500  Boxes  of  Pipes,  2  Abb.  (U.  S.)  Wheat.  388. 
500. 


276  ADMIRALTY. 

regarded  as  extending  to  a  roadstead,  (m)  but  not  to  a  bay 
entirely  landlocked  and  enclosed  by  reefs, («)  and  still  less  to 
a  river,  within  the  ebbing  and  flowing  of  the  tide.(o) 

Upon  the  high  seas,  every  vessel,  public  or  private,  is  a 
part  of  the  territory  of  the  nation  of  the  owners,  for  jurisdic- 
tional purposes,  so  that  an  offence  committed  on  board  is  an 
offence  against  the  sovereignty  of  the  nation.  But  a  private 
ship,  entering  a  foreign  jurisdiction,  is  subject  to  the  laws 
there  prevailing,  and  a  crime  may  be  punished  by  the  local 
laws.Qj) 

And  even  on  the  high  seas,  of  an  offence  committed  on 
board  one  vessel,  which  takes  effect  and  is  consummated  on 
board  another  vessel  belonging  to  a  different  nation,  the 
latter  sovereignty  has  the  jurisdiction.  For  example,  an 
American  vessel  was  lying  at  harbor,  in  one  of  the  Society 
Isles,  and  a  gun  was  fired,  whereby  a  person  was  killed  on 
board  a  schooner  belonging  to  the  natives,  and  lying  in  the 
same  harbor.  It  was  held  that  if  the  harbor  was  to  be  con- 
sidered as  part  of  the  high  seas,  yet,  in  contemplation  of  law, 
the  act  was  done  on  board  the  foreign  schooner,  where  the 
shot  took  effect,  so  that  jurisdiction  belonged  to  the  foreign 
government (<^) — a  principle  prevailing  everywhere;  so  that 
where  a  person  on  the  high  seas  was  killed  by  a  shot  fired  by 
one  on  shore,  the  murder  was  declared  to  have  been  on  the 
high  seas,  and  therefore  within  admiralty  jurisdiction. (r) 

But  to  give  jurisdiction,  in  a  case  of  murder,  not  only  must 
the  stroke  be  given  on  the  high  seas,  but  the  death  must  also 
occur  there,  it  seems,  and  not  afterwards  on  the  shore. (s) 

§  266.  The  rule  of  jurisdiction  does  not  apply  to  pirates, 
since  these  are  outlaws,  and  may  be  destroyed  by  whomsoever 
finds  them.  A  pirate  is  defined  to  be  one  who  acts  solely  on 
his  own  authority,  without  any  commission  from  a  sovereign 

(?n)United    States    v.    Pirates,    5  (^)People  v.  Tyler,  7  Mich.  200. 

Wheat,  200.  (9)Uuited  States  v.  Davis,  2  Sunin. 

(7i!.) United   States  v.  Robinson,  4  4S4. 
Mason,  307.  (r)Ibid.  485. 

(o) United  States  «.  Wiltberger,  5  (.s) United  States  v.  McGill,  4  Dall. 

Wheat.  93.  *426.    But  see  chapter  on  Crimes. 


ADMIRALTY.  277 

state,  seizing  by  force  and  apijropriating  to  himself,  without 
distinction,  every  vessel  he  meets  with.  And  robbery  on  the 
high  seas  is  piracy,  but,  in  order  to  constitute  the  offence,  the 
taking  must  be  felonious,  and  the  quo  animo  may  be  inquired 
into.  And  so  a  commissioiled  cruiser  does  not  become  a 
pirate  merely  by  exceeding  his  authority. (^)  And  robbery  of 
one  by  another,  merely,  on  board  a  lawful  ship,  is  not  piracy; 
but  the  pirate  act  implies  robbery  of  another  vessel,  or  else 
mutiny  on  board. (t/)  The  offence  includes  freebooting,  not 
under  acknowledged  authority  or  deriving  protection  from  the 
flag  or  commission  of  any  government. (r-)  And  it  extends  to 
such  an  act  committed  ./'vrwi  a  lawful  vessel. («•)  But  it  does 
not  extend  to  a  murder  committed  by  a  foreigner  on  a  for- 
eigner on  board  a  foreign  vessel. (r) 

§  267.  And  this  leads  to  the  question  of  admiralty  juris- 
diction, in  its  relation  to  foreigners  and  foreign  countries,  in 
a  general  view.  The  principle  on  which  the  admiralty  courts 
of  England  and  the  United  States  take  cognizance  of  actions 
in  j)crs')uam  and  in  rem.  between  foreigners  is  to  prevent  a  fail- 
ure of  justice,  and  where  there  is  not  a  necessity  in  this  par- 
ticular, they  will  decline  to  entertain  suits;  as,  where  the 
voyage  is  not  broken  up  or  completed.  In  England,  even 
then,  but  not  in  the  United  States,  the  assent  of  the  repre- 
sentative of  the  government  must  be  obtained.  (^) 

It  rests,  therefore,  almost  entirely  in  the  discretion  of  courts 
whether  to  hear  and  determine  a  cause,  or  remit  it  to  the 
forum  of  the  nation  to  which  the  parties  belong,  (^)  and  the 
jurisdiction  rests  on  exj^ediency  alone,  whether  on  the  matter 
of  wages,  salvage  or  any  other  claim  ;  although,  usually,  suits 
for  salvage  are  entertained  even  where  all  the  parties  are  for- 
eigners, (a) 

The  principle  is  thus  stated :   "A  court  of  admiralty  has 

(^)Davison  v.  Seal-skins,  2  Faine,  (w)United    States    v.    Pirates,    5 

833.  Wheat.  195. 

(w)United    States    v.    Palmer,    3  (.c)Il)id,  194. 

Wheat.  625,  634.  (/y)Uavis«.  Leslie,  1  Abb.  Adin.134. 

(H)United  States  «j.Smith,5  Wheat.  (3)194  Shawls,  Ibid,  321,  and  cases 

163.  f^ited. 

(a)The  Bee,  1  Ware,  336. 


278  ADMIRALTY. 

jurisdiction  in  suits  for  wages  promoted  by  foreign  seamen 
against  foreign  vessels,  as  questions  of  general  maritime  law. 
But  the  exercise  of  such  jurisdiction  is  discretionary  with  the 
court,  and  to  be  permitted  or  withheld,  according  to  circum- 
stances. The  express  consentt)f  the  foreign  minister,  or  con- 
sul, is  not  essentially  necessary  to  found  such  jurisdiction. 
Nevertheless,  the  exercise  of  it  is  rather  a  matter  of  comity 
than  of  duty.  Whether  it  ought  ever  to  be  exercised  against 
the  remonstrance  of  the  representatives  of  such  foreign  nation 
we  need  not  inquire,  as  we  cannot  foresee  all  possible  cases, 
and  that  question  is  not  before  us.  But  when  the  court  does 
entertain  such  cases,  without  the  request  of  the  representative 
of  the  government,  they  will  require  the  libellants  to  exhibit 
such  a  case  of  peculiar  hardship,  injustice  or  injury  likely  to 
be  suffered  without  such  interference  as  would  raise  the  pre- 
sumption of  a  request ;  because  it  is,  in  fact,  conferring  a  favor 
on  such  foreign  state.  If  the  contract  with  the  mariners  has 
been  dissolved,  if  the  voyage  has  been  terminated,  and  there  is 
a  dissolution  of  the  relation  of  the  seamen  with  the  ship,  or  if 
such  dissolution  has  been  caused  by  some  wrongful  act  of  the 
master,  or  if  a  bottomry  bond  has  become  due  at  the  end  of 
the  voyage,  and  the  remedy  might  be  endangered  by  delay, 
in  such  and  like  cases,  as  a  matter  of  comity,  not  of  right, 
courts  of  admiralty  will  interfere  to  protect  the  rights  of  for- 
eigners in  our  ports.  "(6) 

Hence,  it  has  been  held  expressly  that  a  libel  for  wages, 
brought  by  British  sailors  against  a  British  ship  on  a  voyage 
ending  in  a  home  port,  will  not  be  entertained  against  the 
protest  of  the  British  consul,  unless  there  be  sj^ecial  circum- 
stances to  justify  it ;  as  a  clear  deviation  from  the  voyage  pre- 
scribed in  the  articles,  or  cruelty,  or  the  breaking  up  of  the 
voyage,  (c) 

A  lien  may  be  thus  enforced,  also;(f?)  and  so,  where  a  libel 
was  filed  against  a  foreign  ship  in  an  admiralty  court  of  the 
United  States,  the  libellant  and  claimant  both  being  foreign- 

(6)Goiizales  v.  Minor,  2  Wall.  Jr.  (c)The  Beclierdass  Ambaidass,  1 

353.  Low.  570. 

((7)The  Maggie  Hammond,  9  Wall.  435. 


ADMIRALTY.  279 

era,  the  place  of  shipping  and  the  place  of  consignment  being 
foreign  ports,  and  the  whole  ground  of  libel  a  matter  which 
occurred  abroad,  the  court  considered  the  question  of  juris- 
diction an  open  question  ;  but  entertained  the  jurisdiction. (e) 

Even  torts  occuring  between  foreign  vessels  in  foreign 
waters  are  sometimes  entertained  in  our  courts ;  as,  in  a  cer- 
tain case,  where  a  Dutch  schooner  and  a  Russian  bark  col- 
lided in  the  North  sea.(./") 

§  268.  We  now  notice  briefly  the  prize  jurisdiction  of  ad- 
miralty, which,  of  course,  pertains  essentially  to  a  state  of 
war.  And  whenever  war  is  declared,  the  property  of  the 
enemy,  whether  on  land  or  sea,  is  a  lawful  subject  of  prize ; 
although,  as  a  matter  of  comity,  a  relaxation  is  mutually 
accorded  to  persons  and  property  within  the  country  belong- 
ing to  the  hostile  nation  for  a  certain  period  after  the  break- 
ing out  of  war.  And  the  question  of  prize  does  not  depend 
upon  locality — that  is,  where  the  capture  is  made ;  but,  whether 
it  be  upon  the  high  seas  or  in  port,  it  is  equally  valid  to  sup- 
port a  condemnation.  The  validity  of  the  capture  itself  is 
to  be  tried  by  the  laws  of  war,  jure  belli,  as  determined  by 
the  law  of  nations,  although  the  effect  and  ultimate  direction 
of  the  forfeiture  depends  on  the  right  given  by  the  terms  of  a 
commission,  according  to  universal  usage  and  legal  defini- 
tions. Vessels  at  sea  are  not  considered  as  a  part  of  the  ter- 
ritory of  a  nation.  Its  flag  is  only  a  designation  of  where  the 
vessel  belongs,  and  protects  nothing  but  the  vessel  itself.  (^) 

In  time  of  war  the  courts  of  the  belligerents  have  exclusive 
jurisdiction  of  the  subject  of  prize,  with  all  its  incidents  and 
consequences.  And  if  prizes  be  made  by  a  vessel  equipped 
in  a  neutral  port,  and  the  prize  be  brought  into  the  ports  of 
the  neutral  nation,  it  will  be  restored,  being  illegal  as  to  that 
nation.  A  seizure  as  a  prize  is,  in  itself,  lawful,  provided  it 
be  under  the  rightful  authority;  and,  even  if  the  condemna- 
tion fail,  it  is  no  ground  of  action  against  the  capture. (/i)  Yet, 
on  the  other  hand,  an  unjust  condemnation  may  require  redress 

(e)Ibid.  (g)  21  Bales,  etc.  ,'2  Paine,  602. 

(/)The  Bark  Jupiter,  1  Bon.  542.  (/i)Juands  v.  Taylor,  2  Paine,  658. 


280  ADMIKALTY. 

by  the  state  whose  courts  pronounce  it ;  and,  if  redress  be 
refused,  may  be  a  ground  for  reprisals  or  war.(i) 

The  prize  court  of  an  ally  cannot  condemn  captured  prop- 
crtv,  but  tiie  courts  of  the  country  to  which  the  captor  belongs 
may  sit  in  an  ally's  territory,  though  not  in  neutral  terri- 

Neither  the  president  nor  any  military  officer  can  establish 
a  court  in  a  conquered  country  and  authorize  it  to  decide  upon 
the  rights  of  the  United  States  or  of  individuals  in  prize  cases, 
nor  to  administer  the  laws  of  nations — this  establishing  of 
courts  being  a  matter  of  legislative  power  wholly.  (A;) 

A  court  may  adjudicate  in  a  matter  of  prize,  even  if  the 
property  has  not  been  brought  within  the  territory  of  its  juris- 
diction, and  proceed  in  rem  whenever  the  prize  or  the  pro- 
ceeds thereof  can  be  traced  into  the  hands  of  any  person 
whomsoever.  (Z) 

But,  as  a  general  rule,  it  is  a  captor's  duty  to  bring  the 
property  to  be  adjudicated  on  by  the  courts  of  his  nation,  and 
if  he  fail  to  do  so  the  courts  will  treat  him  as  a  trespasser  ab 
initio,  on  suit  by  the  captured  party,  unless  there  are  circum- 
stances requiring  an  immediate  sale,  which  msiy  be  a  sufficient 
excuse.  (»i) 

It  is  held  that  our  courts  have  no  jurisdiction  to  redress 
any  supposed  torts  committed  on  the  high  seas  by  a  regularly 
commissioned  cruiser  of  a  friendly  foreign  power,  unless  such 
cruiser  has  been  fitted  out  in  violation  of  our  neutrality. (/i) 

The  prize  court  may  hear  and  determine  all  claims  arising 
after  a  capture  against  a  vessel,  even  as  to  matters  of  tort. 
Thus,  when  a  prize  ship  on  the  way  from  the  place  of  cajD- 
ture  to  the  port  of  adjudication  committed  a  marine  tort,  by 
running  into  and  sinking  another  vessel,  and  was  afterwards 
duly  condemned  and  sold,  it  was  held  that  the  claims  for 
damages  from  the  collision  should   be  paid  out  of  the  pro- 

(/jllallcck's  Intern.  Law,  (1861,)  (l)llnd. 

P-  7(i;5.  (m)Ibid,  p.  516. 

{,/)Il)id,  p.  756.  (7i)L'lnvincible,  1  Wheat.  252. 

(/,).Teck('r v.  Montgomerj^,  13 How. 
515. 


ADMIEALTY.  281 

ceeds  of  the  sale  first,  and  the  remamder  distributed  to  the 
captors,  (o) 

On  bills  given  to  ransom  a  captured  vessel,  the  court  of 
admiralty  has  exclusive  jurisdiction  to  entertain  suits. (2^) 

In  case  of  rebellion,  where  the  rebels  are  recognized  as 
belligerents,  the  same  principles  prevail  as  to  prizes  when 
these  are  taken  by  the  concurrence  of  the  naval  arm  of  the 
government.  This  concurrence  must  be  provided  for  by  stat- 
ute, however;  or  otherwise  the  capture  must  be  made  by  war 
vessels  alone.  And  vessels  are  not  regarded  as  war  vessels 
which  are  used  merely  as  transports;  and  if,  with  their  con- 
currence, the  military  forces  on  land  make  a  capture,  this 
does  not  bring  the  property  captured  within  the  prize  juris- 
diction. Captures  on  the  great  rivers  are  subject  to  prize 
laws;  as,  on  the  Mississippi. (g') 

In  matters  of  prize  the  supreme  court  can  only  exercise 
apjoellate,  not  original,  jurisdiction,  nor  by  order  of  transfer. (r) 

§  269.  In  regard  to  foreign  ships,  repairs  or  supplies,  in 
our  ports,  create  a  lien  on  the  vessel  ;(s)  the  contrary  of  the 
the  rule  as  to  home  ports,  as  before  set  forth  in  this  chapter.  (^) 

§  270.  The  admiralty  has  no  direct  jurisdiction  over  trusts, 
nor  can  it  decree  a  specific  performance  of  any  agreement, 
although  relating  to  maritime  affairs.  (t() 

.(«9)The  Siren,  7  Wall.  1.j3.  (.s)The  Aurora,  1  Wheat,  96,  103 ; 

(p)Maisonnaire  v.  Keating,  2  Gall.  The  .Jerusalem,  2  Gall  349. 

343.  {t)The  Lottawana,  21  Wall.  578. 

(g)Bales  of  Cotton,  1  Woohv.  243.  (w)Davis  «.  Child,  Daveis,  71. 
(r)The  Alicia,  7  Wall.  573. 


282  PROBATE. 


CHAPTEE  TV. 

PROBATE. 

271.  Nature  of  probate  jurisdiction. 

272.  Authority  mainl}^  statutory'. 

273.  Relation  with  com-ts  of  chancery. 

274.  Collateral  questioning  of  proceedings. 

275.  Domicile  determines  jurisdiction. 

276.  Wills. 

277.  Appointing  power. 

278.  Power  of  control  and  removal. 

279.  Assets  of  estates. 

280.  Claims  against  estates. 

281.  Partition  and  dower. 

282.  Sale  of  land  to  pay  debts. 
28.3.  Binding  out  orphans. 

284.  No  power  to  sell  homestead. 

285.  Deciding  on  validity  of  bequests — trusts. 

286.  Partnership  accounts. 

287.  Set-offs. 

288.  Situs  of  per.sonal  property. 

289.  Limitation  of  control  of  administrators,  etc. 

290.  Probate  of  wills  devising  real  estate. 

291.  Specific  performance. 

292.  Matters  of  fraud. 

293.  Changes  of  venue. 

294.  Statutes  of  limitation. 

295.  Administrator  of  an  administrator. 

296.  llents  for  real  estate. 

297.  Habeas  corpus  writs. 

298.  Contempts. 

299.  Settlements  and  distributions. 

300.  Same — limitation  of  juri.sdiction. 

301.  Disqualification  of  probate  judge. 

302.  Terms  of  court. 

§  271.  Courts  of  probate  have  only  a  limited  jurisdiction, 
and  their  powers  are  strictly  construed;  so  that  if  a  statute 


PROBATE.  28:3 

requires  notice,  and  no  notice  is  given,  the  party  entitled  to 
notice  may  treat  the  .judgment  as  a  nullity. (a)  However, 
they  are  courts  of  record  ;(^)  so  that  they  are  not  regarded  as 
inferior  courts  in  the  technical  sense,  although  limited  in  their 
jurisdiction  ;(c')  and  that,  whether  exercised  by  distinct  courts 
or  by  chancery  courts. (tZ)  Their  leading  jurisdiction  is  the 
probate  or  proof  of  wills,  and  matters  strictly  incidental 
thereto.  Such  a  court  will  decide  only  upon  the  factum  of  the 
will,  but  leave  the  disputed  riijlits  of  parties  to  be  determined 
by  other  tribunals  thereafter. (e)  And,  in  this  particular,  it 
has  jurisdiction  in  wills  pertaining  to  land  as  well  as  personal 
property.  (/) 

There  are,  however,  many  incidentals  regarded  as  belong- 
ing to  the  exercise  of  this  jurisdiction,  which  we  shall  here- 
after notice — some  of  them  an  accretion  of  late  years.  Among 
these  incidentals  are  granting  letters  testamentary,  or  of  ad- 
ministration, and  settling  accounts  of  administrators,  guard- 
ians, etc.;(.r/)  and,  in  some  states,'  determining  questions  of 
dower  rights,  so  far  as  they  are  determinable  as  matters  of 
law,  and  not  of  equity. (/i) 

§  272.  The  authority  exercised  by  these  courts  is  mainly 
statutory.  The  authority  to  perform  such  and  such  functions, 
however,  needs  not  be  given  in  express  terms,  but  may  arise 
from  the  general  language  of  the  statute,  or  by  implication 
from  the  necessity  thereof  to  the  proper  exercise  of  tlie 
powers  exj)ressly  given. (i) 

i^  273.  A  court  of  chancery  will  not  supervise  the  exercise 
of  the  jurisdiction  of  separate  courts  of  probate,  any  more 
than  they  will  intermeddle  with  the  jurisdiction  of  courts  of 
common  law ;  as,  for  instance,  in  the  settlement  of  estates, 

(a)Matthewson  v.  Sprague,  1  Cur-  (e)Fiiicli  v.  Finch,  14  Ga.  3G2 

tis,  C.  C.  457.  (/)Matthewsou».  Sprague,  1  Cur- 

(^-)Cliase  V.  Whiting,  30  Wis.  547.  tis,  C.  C.  457. 

(c)Cody  v.  Raynaud,  1  Cal.  T.  275;  (gijSteen  v.  Steen,  25  Miss.  514. 

Davie    «.    McDaniel,    47    Ga.    195;  (A)Gardner   w.   Ganhicr,  10  11.  I. 

Hanks  v.  Neal,  44  Mi.ss.  21.S.  211. 

((Z)Bcrnheimer     «.     Callioun,    44  (^)Seanian    v.    Duryca,    lU    Burl). 

Miss.  426.  523. 


284  PROBATE. 

wherein  probate  courts  have  entire  and  exclusive  jurisdic- 
tion ;(j)  with  the  exception  of  some  states,  however,  (/c) 

The  general  rule  is  thus  stated  by  the  supreme  court  of 
Pennsylvania :  "The  orphans'  court  is  sometimes  called  a 
court  of  limited  jurisdiction.  This  is  true,  if  regard  be  had 
to  the  derivation  of  its  powers ;  for  it  possesses  none  inher- 
ently, and  exercises  such  only  as  are  conferred  by  or  implied 
from  legislation ;  and  it  is  true,  also,  as  to  the  suhjccts  of  its 
jurisdiction,  for  these  are  set  down  in  the  statutes;  but,  within 
its  appointed  orbit,  its  jurisdiction  is  exclusive,  and  therefore, 
necessarily,  as  extensive  as  the  demands  of  justice ;"(/)  and, 
"being  a  court  of  equity,  it  can  mould  its  process  according 
to  the  necessities  of  the  case  which  it  has  in  hand."(m) 

It  is  manifest,  however,  that,  like  other  courts,  these  may 
have  a  concurrent,  as  well  as  exclusive,  jurisdiction.  Thus, 
w^iile  in  Pennsylvania  they  have  exclusive  jurisdiction  over 
questions  of  advancement  and  distribution, (/i)  and  also  in 
cases  where  grandchildren,  whose  father  has  died  before  the 
grandfather,  take  the  father's  share,  subject  to  his  debts  to 
the  intestate,  so  that  in  an  action  of  ejectment  the  question 
of  such  inde])tedness  cannot  be  raised,  but  must  be  deter- 
mined in  the  orphans'  court, (o)  on  the  other  hand,  the  gen- 
eral jurisdiction  is  not  exclusive  of  common  law  remedies 
a'gainst  estates, (/j)  and  as  to  legacies  it  is  exclusive  only 
when  the  legacy  is  charged  on  land.(^) 


( j)Heirs  v.  Adams,  22  Vt.  52.  erty  under  a    power   in    the   will. 

And   so,   the   probate   court   can  Angisola  v.  Arnaz,  51  Cal.  435. 

order  the  sale  of  personal  property,  (/i;)Clarke  v.  Perry,  5  Cal.  60. 

as  stocks,  when  this  is  necessary  in  (^)Shal]cnberger's  Appeal,  21  Pa. 

order  to  a  settlement  and  distribu-  St.  341. 

lion.      Bobb's    Succession,   27   La.  (m)Suyder's   Appeal,   36   Pa.    St. 

An.  344.     Only  the  probate   court  168. 

has  power  to  order  final  distribu-  (?i)Hughes'    Appeal,   57   Pa.    St. 

tion  in  any  case,  or  to  compel  an  179. 

executor  to  account  tor   the   per-  (f>)lnsurance  Co.  v.  Wilson,  Ibid, 

sonal  propert}^  in  his  hands,  whether  182. 

it  be  .such  as  the  testator  owned  at  (^)McLean'sEx'rst).  Wade,  53  Pa. 

the  time  of  his  death,  or  the  pro-  St.  146. 

ceeds  of  the  sales  of  personal  prop-  (g)Burt  v.  Ex'rs,  66  Pa.  St.  400. 


PROBATE.  285 

The  jurisdiction  may  be  concurrent  with  chancery,  (r)  or 
common  law.(s) 

In  North  Carolina  it  is  held  that,  although  a  court  of  pro- 
bate has  exclusive  original  jurisdiction  of  special  proceedings 
to  recover  legacies  and  distributive  shares,  (a  different  rule 
from  that  in  some  other  states,)  yet,  if  the  executor  has  so 
assented  to  a  legacy  as  to  amount  to  an  implied  or  express 
promise  to  pay  it,  suit  must  be  brought  for  it  in  the  superior 
court. (/)  It  is  different  in  Pennsylvania,  by  statute  of  1836. 
Ashforcl  v.  Eicing,  25  Pa.  St.  213. 

The  ordinary  rule,  that  consent  cannot  give  jurisdiction,  is 
fully  applicable  in  a  matter  belonging  to  the  exclusive  juris- 
diction of  the  jjrobate  court. (w) 

And,  also,  in  such  cases,  mistakes  in  a  judgment  can  only 
be  corrected  by  appeal  in  the  usual  mode,(t;) 

§  274.  As  to  questioning,  collaterally,  the  decisions  of  pro- 
bate courts,  the  general  rule  applies,  "that  where  the  matter 
adjudicated  is  by  a  court  of  j)eculiar  and  exclusive  jurisdic- 
tion, and  the  same  matter  comes  incidentally  before  another 
court,  the  sentence  in  the  former  is  conclusive  upon  the  lat- 
ter as  to  the  matter  directly  decided,  not  only  between  the 
same  parties,  but  against  strangers,  unless  it  can  be  im- 
peached on  the  ground  of  fraud  or  collusion. "(?r) 

Hence,  a  grant  of  letters  cannot  be  collaterally  attacked  in 
another  county,  by  showing  that  the  last  place  of  residence  of 
the  deceased  was  not  in  the  county  where  the  letters  were 
issued,  (.r) 

The  danger  of  an  opposite  doctrine  is  quite  clearly  stated 
by  the  supreme  court  of  New  York:  "Where  the  jurisdiction 
of  a  subordinate  tribunal,  having  cognizance  of  the  general 
subject,  has  attached  by  the  presentation  of  a  verified  prima 
facie  case,  and  by  the  appearance  of  the  parties,  its  decision, 
even  on  a  (piasi  jurisdictional  fact,  such  as  that  of  inhal)itancy, 

(r)  Robinson  W.Stanley,  3SVt.  570.  («).Tu(i,ue  of  Probate  v.  Lane,  51 

(s)Shoemaker  v.  Brown,  10  Kan.  N.  H.  343. 

383  (w)Lessee  v.  Selin,  4  Wash.  ('.  0. 

(^Miller  v.  Barnes,  6.5  N.  C.  (i7.  721. 

(w)Dodson  V.  Scroggs,  47  Mo.  285.  (j;)Ir\vin  v.  Scriber,  18  Cal.  503. 


286  PROBATE. 

must  be  conclusive,  unless  reversed  on  appeal.  To  allow  it 
to  be  called  in  question,  collaterally,  and  on  every  occasion, 
and  during  all  time,  would  be  destructive  of  all  confidence. 
No  business  in  particular,  depending  on  letters  testamentary, 
or  of  administration,  could  be  safely  transa'--ted.  Payments 
made  to  an  executor  or  administrator,  even  after  judgment, 
would  be  no  protection.  Even  if  the  debtor  litigated  the  pre- 
cise point  and  compelled  the  executor  to  establish  it  by  proof, 
the  adjudication  would  avail  him  nothing,  should  a  subsequent 
administrator,  as  in  this  case,  spring  up,  and,  after  the  lapse 
of  the  fifth  of  a  century,  demand  payment  a  second  time,  when 
a  scintilla  of  evidence  on  one  side  remained,  and  all  on  the 
other  had  perished.  A  large  number  of  titles,  too,  depend 
for  their  validity  on  decrees  of  foreclosure,  and  these  decrees 
are  often  made  in  suits  instituted  by  executors  or  administra- 
tors, or  their  assigns.  Must  these,  too,  be  subject  to  be  over- 
hauled at  any  period,  however  remote,  on  the  nice  question 
of  residence"? — a  question  often  difficult  to  decide  where  the 
facts  are  clear,  and  much  more  so,  of  course,  where  the 
facts  are  obscured  by  lapse  of  time,  and  loss  of  documents 
and  witnesses.  "(</) 

The  principle,  however,  is  dependent  largely  upon  the  fact 
of  these  courts  being  courts  of  record,  and  it,  therefore,  did 
not  hold  at  the  common  law  as  to  ecclesiastical  courts,  as 
courts  of  probate.  "However  the  proceedings  of  a  court  of 
probate  might  formerly  be  avoided  by  plea,  on  account  of  any 
irregularity,  it  must  now  be  held  that  if  the  court  acts  within 
its  jurisdiction  as  to  the  subject-matter  of  its  decisions,  as  to 
the  persons  to  be  affected,  and  as  to  the  course  of  proceedings 
prescribed  for  it  by  law,  its  decisions  are  binding  and  conclu- 
sive upon  all  parties  interested.  They  may  be  reheard  and 
re-examined  upon  appeal,  which  is  the  mode  appointed  for 
the  correction  of  its  errors,  but  they  cannot  be  questioned  or 
impeached  collaterally  in  any  other  court  or  course  of  pro- 
ceedings, unless  fraud  is  alleged.  "(^)    Thus,  in  Penns3dvania, 

(.?/)Monell  V.  Dennison,  17  How.  H.)  124;  Chase  v.  Hathaway,  14 
Pr.  (N.  Y.)  426.  Mass.  227. 

(z)Tebbets  «.   Tilton,  4  Fost.  (N. 


PROBATE.  287 

it  is  held  that  the  judgment  of  a  register  admitting  a  will  to 
probate  cannot  be  examined  collaterally,  whether  the  will  was 
made  in  that  state  or  in  another. (o)  In  Alabama  it  is  held 
that  when  the  jurisdiction  of  a  probate  court  depends  upon  a 
fact  which  such  court  is  required  to  ascertain  and  settle  by  its 
decision,  as  a  preliminary  to  its  jurisdiction — as,  for  exam- 
ple, the  necessity  of  an  order  of  sale — then  the  exercise  of  the 
jurisdiction  implies  the  previous  ascertainment  of  the  pre- 
liminary jurisdictional  fact,  and  its  decision  thereon  cannot 
be  collaterally  attacked.  (/>)  In  Louisiana  it  is  held  that  the 
appointment  of  a  guardian  [tutor]  cannot  be  questioned  col- 
laterally, but  only  in  a  direct  proceeding  to  annul  and  set 
aside  the  appointment. (c)  In  Texas  it  is  held  that  an  entire 
want  of  jurisdiction  may  be  questioned  collaterally;  as,  for 
example,  that  the  supposed  decedent  was  living  or  otherwise; 
that  the  estate  had  been  fully  administered  on  previously; 
but  not  any  irregularity  or  error  in  proceedings  where  juris- 
diction had  attached  to  the  subject-matter. (d)  In  Missouri 
it  is  held  that  a  grant  of  administration  is  conclusive  on  all 
other  courts,  (e) 

(a)Lovett's  Ex'i-s  v.  Matthews,  24  tion,  they  are  not  to  be  regarded  as 

Pa.  St.  332.  having  a  mere  special,  instead  of 

(6)Wyatt's    Adm'r    v.    Steele,  26  general,  jurisdiction.     Their  juris- 

Ala.  650.  diction  is  general  over  the  class  of 

(c)Martin  v.    Jones,    12   La.   An.  subjects  within   their   province,   so 

368.  that  they  are  to  be  regarded  as  hav- 

(d)Fisk  V.  Norvel,  9  Tex.  14.  ing  the  attributes  of  superior  courts 

(«)Naylor's  Adm'r  v.  Moffatt,  29  quoad  hoc,  and  as,  therefore,  enti- 

Mo.  126.  tied  to  the  benefit  of  presumptions 

It  is  held  in  Illinois,  and  is,  I  similar  to  those  which  prevail  as  to 
think,  the  general  rule,  that,  in  re-  superior  courts  generally-  Bost- 
gard  to  the  administration  of  es-  wick  v.  Skinner,  SO  111.  147.  That 
tates,  the  decisions  of  a  probate  is,  collateral  attacks  are  not  to  be 
court  are  supported  by  the  same  allowed  as  to  their  findings.  Gam- 
presumptions  that  attach  to  the  ble  v.  Jordan,  54  Ala.  368.  Tliis  is 
actions  of  superior  courts;  and  it  the  weight  of  authority,  although 
is  not  necessary  that  the  facts  jus-  it  seems  to  be  held  otherwise  in 
tifying  the  decision  shall  appear  some  states.  The  cases  are  col- 
affirmatively  on  the  face  of  the  pro-  lected  in  an  article  in  the  May  num- 
ceedings.  People,  for  use,  etc.,*.  ber,  1880,  of  the  North  American 
Gray,  72  111.  343.  Although  pro-  Review,  as  to  the  various  points 
bate  courts  are  of  limited  jurisdic-  necessarily    included    in    prol)ate 


2S8  PROBATE. 

8  275.  The  last  domicile  of  the  deceased  determines  the- 
jurisdiction  as  to  administration,  and  that,  too,  when  patent 
interests  are  to  be  brought  into  litigation  by  or  against  execu- 
tors;(/)  unless  in  the  case  of  a  non-resident  of  the  state^ 
when  usually  administration  may  be  granted  wherever  prop- 
erty exists  within  the  state. (.9)  The  residence  of  minors  deter- 
mines jurisdiction  in  matters  of  guardianship,  and  even  on 
removal  of  the  father  holding  the  relation  to  another  county^ 
•while  the  minors  remain  in  the  county  from  which  he  removed 
and  where  he  was  appointed,  (/t)  In  Mississippi  there  is  a 
qualification  to  the  general  rule  as  to  residence  of  decedent, 
namely,  that  if  the  greater  part  of  his  estate  is  in  one  county 
while  his  domicile  had  been  in  another,  letters  may  be  issued 
in  the  former. (i)  Also,  in  Texas,  the  last  residence  must  have 
been  not  a  temporary  one,  but  a  fixed  residence.  (,;)  And 
probably  this  is  the  prevailing  rule  everywhere,  although  in. 
Texas  it  is  so  defined  by  statute  expressly. 

In  California,  if  a  county  is  divided  after  the  death  of  an 
intestate,  the  former  county  retains  the  jurisdiction,  although 
the  former  domicile  of  the  deceased  may  fall  within  the  limits 
of  the  new  county. (A:)  But,  in  Mississippi,  the  legislature 
may  by  special  act  transfer  jurisdiction  from  one  county  to 

business.  The  article  discusses,  of  close  invest itration,  and  it  will 
also,  the  question  whether  the  de-  not  be  very  surprising  if,  in  this,  as 
cisiou  of  a  probate  court,  as  to  the  in  other  instances,  authority  may- 
fact  of  death,  is  conclusive  or  not;  be  found  opposed  to  legal  princi- 
and  while  it  agrees  that  the  weight  pie.  If  a  court  of  high  standing- 
of  authority  sustains  the  position  once  goes  astray  from  fundamental 
of  Chief  Justice  Marshall,  that  the  principles,  and  their  logical  conse- 
act  of  appointing  an  administrator  quenccs,  it  may  quite  naturally 
on  the  estate  of  a  person  not  really  draw  into  its  wake  the  majority  of 
dead  is  totally  void,  (Griffith  v.  Fra-  courts  in  the  country,  and  thus  es- 
zier,  8  Cranch,  23  ;  Moore  v.  Smith,  tablish  error  by  a  general  authority. 
11  Kich.  [Law]  .569 ;  Jochimssen  «.  (/)Rubber  Co.  «.  Goodyear,  ^ 
Bank,  'i  Allen,  87;  Meliar  v.  Sim-  Wall.  789. 

mons,  45  Wis.  334)  yet  it  argues,  on  (^)]\Iillcr  v.  Adm'r,  26  Ala.  247. 

principle,  for  the  contrary  doctrine  (7i)Lyons  v.  Andrews,  12  La.  Ad. 

with  considerable  force,  which  is  685. 

sustained  somewhat  faintly  by  Rod-  (/) Cocke  v.  Finley,  29  Miss.  127. 

erigas    v.    Savings    Institution,    63  ( j) George  t>.  Watson,  19  Tex.  367. 

N.  Y.  460.     The  matter  is  worthy  (A;)Estate  of  Harlan,  24  Cal.  187. 


PKOBATE. 


289 


another,  where  the  intestate  had  not  been  domiciled,  even 
without  any  division  of  counties,  (i) 

§  276.  As  to  jurisdiction  in  the  case  of  wills  I  do  not  know 
that  in  any  state  the  old  common  law  rule  prevails  that  pro- 
bate courts  have  cognizance  only  of  wills  pertaining  to  per- 
sonal property;  but  usually,  I  think,  in  all  the  states  they 
have  original  and  general  jurisdiction  of  the  probate  of  wills, 
whether  of  real  or  personal  estates, (m)  subject,  sometimes, 
to  special  limitations ;  as,  in  Pennsylvania,  where  there  is  an 
objection  raised  on  "a  disputable  or  difficult  matter,"  a 
register  can  proceed  no  further  without  calling,  on  request  of 
the  objector,  or  any  person  interested,  a  register's  court,  and 
a  mandcumts  will  lie  to  compel  him  to  do  so.(/i)  In  New 
York  a  lost  or  destroyed  will  cannot  be  proved  in  the  surro- 
gate's court — the  jurisdiction  belonging  to  the  supreme  court, 
in  such  case.(o)  And,  probably,  a  missing  will  can  never  be 
probated  in  any  of  the  states.  For,  indeed,  while  a  will  de- 
stroyed by  spoliation  may  be  restored  in  equity,  yet  even 
equity  will  not  take  jurisdiction  to  restore  a  lost  will,  or  one 
that  has  been  destroyed  by  accident,  or  one  that  has  been 
suppressed  by  fraud,  (p) 

A  will  may  be  probated  in  a  state  wherein  there  is  prop- 
erty, although  the  testator,  at  his  decease,  was  domiciled  in 
another  state.  And  even  where  a  testator  had  sold  his  dom- 
icile and  died  in  traveling,  without  having  acquired  a  new 
domicile  anywhere,  his  will,  it  was  held,  could  l)e  rightfully 


(?)L:irned  v.  Matthews,  40  Miss. 
210. 

(m)Htiirs  Heirs  v.  Hall,  39  Ala. 
29.') ;  Mattliewson  v.  Spnigue,  1 
Curt.  C.  C.  457. 

Courts  of  law  and  equity  in  this 
country  will  not  consider  testa- 
mentary papers,  or  rights  dependent 
upon  them,  without  the  preliminary 
probate  —  this  being  regarded  as 
fundamental  and  jurisdictionaJ. 
Wood  V.  Matthews,  53  Ala.  1.  And 
as  this  probiite  l)elongs  essentially 
to  the  probate  court,  this  court  is 
v.l— 19 


regaided  as  liaving  exclusive  juris- 
diction for  this  purpose,  in  the  first 
instance;  so  that  even  a  deed  can- 
not be  admitted  in  evidence  to  es- 
tablish title  under  an  unprobated 
will.  Willamette  Co.  «.  Gordon,  6 
Or.  17(3.     (iSee  p.  284,  sujyra,  noicj.) 

(7i)Commonwcalth  w.Bunn,  71  Pa. 
St.  405. 

(o)Bulkley  v.  Kedmond,  2  JJradf. 
(N.  Y.)  2sl'. 

(7>) Perkins  v.  Perkins,  21  Ga.  14, 
citing  Story  on  Equity. 


290  PROBATE. 

probated  where  he  was  domiciled  before,  even  if  he  had  no 
intention  of  ever  returning  to  the  place. (2) 

In  general,  it  does  not  belong  to  a  court  of  probate  to  adju- 
dicate on  the  rights  of  parties  under  a  will;  and  if  such  a 
power  does  exist  anywhere,  it  is  wholly  statutory,  (r)  Nor  to 
determine  the  validity  of  a  will  concerning  real  estate,  the 
probate  being  confined  to  its  due  execution  ;(s)  nor  after  dis- 
tribution on  the  basis  of  the  validity  of  a  will  to  entertain  a 
suit  to  recover  personal  property  upon  the  ground  that  the 
will  was  void.(^)  However,  as  an  instrument  of  settlement 
and  distribution,  it  may  take  cognizance  of  ademption  of 
legacies.  («) 

§  277.  The  power  of  appointment  in  a  court  of  probate 
extends  to  administrators  of  intestate  estates,  administrators 
under  a  will  which  does  not  name  an  executor,  administrators 
de  bonis  non,  guardians,  custodians,  and  trustees  testament- 
ary. 

A  custodian  is  appointed  when  needed  to  take  care  of  per- 
sonal property  pending  actual  administration ;  as,  where  an 
executor  under  a  will  refuses  to  give  a  bond  in  such  sum  as 
required  by  the  court,  and  proceedings  are  pending  thereon. (i') 

Testamentary  trustees  are  appointable  to  fill  vacancies  in 
regard  to  trusts  created  by  will,(?/j)  the  vacancies  occurring 
while  the  active  branch  of  the  trust  continues;  that  is  to 
say,  the  appointment  will  be  made  when  necessary,  and  only 
then.(,r)  And  appointment  of  an  administrator  de  bonis  non 
is  also  to  fill  a  vacancy;  as,  when  an  administrator  dies  or 
resigns,  and  the  estate  is  not  settled. 

As  to  the  regular  appointment  of  an  administrator,  it  can- 
not be  questioned,  collaterally,  even  when  there  are  irregulari- 
ties in  the  manner;  and  the  appointee  is  an  administrator (ig 

(7)81111  V.  Corporation,  38  Miss.  (?/)May's  Heirs  v.  Adm'r,  2S  Ala. 

64t;.  152. 

(r)Willard's  Appeal,  65  Pa.St.267.  («)Sarle  v.  Court  of  Pro]>ate,  7  U. 

(.s)Story    on    Equity,   (Redfield's  I.  273. 
Ed.)  H  184,  238.  (w)Shaw  v.  Paine,  12  Allen,  293. 

(i!)Carter's    Heirs    v.    Adm'rs,  39  (a;)CTraham  v.   Dewitt,   3   Bradf. 

Ala.  585.  (N.  Y.)  186. 


I 


PROBATE.  291 

facto,  notwitlistanding  such  irregularities. (?/)  But  if  letters 
are  issued  where  an  intestate  was  not  a  resident  of  the  state, 
and  left  no  property  in  the  state,  and  none  afterwards  comes 
into  the  state,  a  grant  of  letters  is  void,  as  coram  non  jiidice, 
there  being  no  basis  of  jurisdiction. (^) 

It  has  been  held,  in  California,  that  the  mere  grant  of  ad- 
ministration to  a  public  administrator  is  sufficient  to  give  him 
authority  even  if  the  letters  are  not  actually  issued ;  and  he 
will  be  allowed  to  adduce  the  judgment  in  support  of  his  au- 
thority, (a) 

The  appointment  of  guardians  is  controlled  by  similar  prin- 
ciples. But,  in  this,  chancery  may  have  concurrent  jurisdic- 
tion. (/?)  A  non-resident  may  be  appointed  guardian,  in  the 
discretion  of  the  court. (c)  But  a  court  cannot  aj)point  a  res- 
ident guardian  for  non-resident  minors,  since  it  can  only 
make  such  appointment  when  the  minors  are  wards  of  the 
court,  the  relation  being  personal.  As  to  property  within  the 
jurisdiction,  however,  a  guardian  may  be  appointed,  as  in  the 
case  of  administrators.  ((?) 

Where  a  guardian  is  appointed  for  a  lunatic,  the  appoint- 
ment is  void  unless  there  has  been  a  preliminary  inquest  of 
lunacy,  (e) 

§  278.  The  court  has  the  power  of  controlling  and  of  re- 
moving administrators,  executors  or  guardians,  and,  there- 
fore, of  revoking  letters  actually  issued;  as,  for  instance,  if 
the  letters  were  obtained  by  fraud. (/)  And  it  is  held  that  a 
probate  court  can  remove  puhl'ic  administrators  as  well  as 
others,  and  order  them  to  make  immediate  settlement — a 
failure  to  obey  which  order  is  a  punishable  contempt.  Bin- 
son  s  Case,  73  N.  C.  278.  The  power  of  removal  is  an  essen- 
tial power,  and  exists  at  common  law.  Taylor  v.  Biddle,  71 
N.  C.  1. 

Executors  are  controllable  for  gross  abuses  of  their  trust, 

(.y)AVight   V.    Wallbaum,   39    111.  (A)Campbcll   v.   Conner,  42   Ala. 

563.  131. 

(2)Iliiilroad  v.  Swayne's  Adm'r,  26  (c)Beriy  v.  Johnson,  53  Me.  401. 

Ind.  47s.  (rf)Boyd  v.  Ghi.ss,  34  Ga.  25(j. 

('^Abel  «.  Love,  17  Cal.  233.  (^ijEsJava  v.  Lepetre,  21  Ala.  504. 

(/)Marsten  v.  Wilcox,  1  Scam.  60. 


2!)  2  PROBATE. 

SO  fill-  as  it  is  discretionary  under  the  will ;  (g)  but  courts  of 
probate  have  no  control  over  a  bequest,  coupled  with  a  power 
to  the  executors  to  give  the  property  to  such  children  of  the 
testator  as  "they  shall  think  proper,"  although  equity  will 
take  supervision  of  the  discretionary  trust  thus  conferred,  (/i) 
In  New  Jersey  the  removal  of  an  executor  belongs  exclusively 
to  the  orphans'  court,  unless  in  some  special  cases,  when  it 
belongs  to  the  ordinary,  (i) 

§  279.  The  matter  of  assets  belonging  to  an  estate  is  within 
the  jurisdiction  of  the  court  of  probate;  and  so,  where,  in  an 
action  in  a  common  law  court  for  a  legacy,  the  plea  of  a 
want  of  assets  was  put  in,  among  other  pleas,  it  was  held  that, 
while  the  jury  might  pass  on  the  other  pleas,  they  could  not 
on  this — they  could  decide  the  plaintiff's  right,  and  then  leave 
the  question  of  assets  to  be  determined  afterwards  in  the 
orphans'  court;  and  where  a  legacy  is  exclusively  payable 
out  of  lands,  the  wiiole  question  belongs  to  the  court  of  pro- 
bate, in  some  states,  at  least. (./')  However,  in  case  of  con- 
cealment of  assets,  the  jurisdiction  rests  on  such  a  conceal- 
ment as  renders  the  act  quasi  criminal,  and  the  usual 
remedies  at  law,  or  in  equity,  difficult  or  impossible — the 
powers  of  the  court  not  extending  to  mere  breaches  of  trust  or 
confidence.  (A;) 

§  280.  As  to  claims  against  an  estate,  a  court  of  probate 
has  equitable  jurisdiction  in  allowing  them,  (l)  But  legal  claims 
must  be  settled  elsewhere,  in  cases  of  dispute,  because  these 
courts  have  no  jury,  and  they  are  not  usually  invested  with 
common  law  powers,  as  judicial  tribunals,  to  adjudicate  con- 
troverted questions  of  law  or  fact.  And,  therefore,  where  the 
validity  of  an  assignment  is  disputed,  the  assignors  being  de- 
ceased, a  court  of  probate  cannot  determine  such  validity,  but  it 
may  ascertain  who  are  the  legal  representatives  of  the  assignor 
thus  deceased,  and  decree  the  share  to  those  representatives 

(r/)Chew's  Ex'rs  v.  Chew,  28  Fa.  (./)Breden  v.  Gilliland,  67  Pa.  St. 

St.' 17.  34. 

(/i)Bi]lingsley  v.  Harris,  17  Ala.  (A;)Taylor    v.    Burseup,    27    Md. 

214.  219. 

(»)Leddel's  Ex'r  v.  Starr,  4  Green,  (;)Hurd  v.  Slateu,  43  111.  349. 
Eq.  159. 


PKOBATE.  20 o 

whicli  may  belong  to  tliem  as  such,(m)  And  so  in  regard  to 
the  evidence,  validity,  and  amount  of  a  disputed  debt.(«)  In 
some  states  there  may  be  exceptions  to  this  general  rule,  how- 
ever, made  by  statute.  But,  otherwise,  the  decree  of  probate 
courts  as  to  payment  depends  upon  the  judgments  of  courts 
of  law  in  disputed  claims. (o) 

So,  where  a  will  creates  a  trust,  and  appoints  a  trustee,  and 
a  court  of  probate  admits  the  will  to  probate,  and  supervises 
the  administration  of  the  estate  under  it,  it  has  no  jurisdic- 
tion to  determine  conflicting  claims  to  the  income  of  the  trust 
fund,  and  compel  the  execution  of  the  trust  according  to  the 
will,  although  this  may  be  regarded  as  an  equitable,  and  not  a 
legal,  controversy. (j9) 

In  like  manner,  if  a  third  party  claim  property  in  the 
hands  of  an  administrator,  a  court  of  probate  cannot  try  the 
question  of  title,  and  make  an  order  for  the  administrator  to 
give  up  the  property  to  the  claimant,  (g)  Nor  can  a  court 
of  probate  ti-y  the  question  of  a  disputed  homestead,  even 
where  it  has  a  right  to  set  out  a  homestead. (r)  But  the  right 
of  a  claimant  is  not  prejudiced  by  bringing  a  petition  therein. 
This  being  dismissed,  a  resort  may  afterwards  be  had  to  the 
appropriate  court. (s) 

However,  in  Alabama,  the  matter  is  made'  to  depend  on 
the  plainness  of  the  proof.  And  so,  where  there  is  an  appli- 
cation to  sell  lands  in  partition,  the  court  is  held  not  to  have 
jurisdiction  to  determine  complicated  questions  of  law  and 
fact  as  to  the  title ;  but  it  may  receive  the  ordinary  evidence 
of  title  afforded  by  deeds  of  undisputed  validity,  when  the 

(m)Wood  V.  Stone,  39  iST.  H.  573.  called  ;  so  that  they  cannot  corn- 
In)  Disosway  v.  Bank,  24  Barb.  G3  ;  pel    an    administrator    to    conve}'' 

Andrews  v.  Wallace,  29  Baih.  350.  propeity  he  holds  in  trust  to  the 

(o)Milier   v.  Dorsey,  9   Md.  323;  heirs  of  an  intestate,  and  account 

Bowie  V.  Ghiselin,  30  Md.  555.  for  the  rents  and  profits.     The  en- 

(7))Hayes  v.  Hayes,  48  N.  H.  219.  forcemeut  of  such  trust  belon_2;s  to 

While,  as   before  stated,  probate  equity.     ITaverstlck   v.  Trudell,  51 

€ourts   can   compel    settlements    by  Cal.  431. 

administrators  and  executors,  they  (7)ITomer's  Appeal,  35  Conn.  113. 

do  not  attempt  to  enforce  the  per-  (r)La7,ell  «.  La/.ell,  8  Allen,  575; 

formance    of    duties    pertaininii;   to  Woodward  «.  Lincoln,  9  Allen,  2:59. 

mailers    ol:     trust,    technically    so  l,.s)\lercler  «.  Chase,  9  Allen,  242. 


294.  PROBATE. 

applicant's  title  is  merely  denied. (i)  In  Mississippi  it  is  held 
that  titles  may  be  adjudicated  upon  as  to  their  validity;  as 
also  contracts,  incidentally,  though  not  in  a  direct  proceed- 

hig.(") 

§  281.  In  matters  of  partition  and  dower  the  court  of  pro- 
bate, in  some  states,  has  tlie  power  of  assignment,  in  others 
not;  the  jurisdiction  is  altogether  statutory.  In  Maine  a 
court  cannot  only  assign  dower,  but  also  sell  the  reversion. (v) 
In  Alabama  the  jurisdiction  in  dower  is  modified,  so  that 
when  dower  can  be  assigned  by  metes  and  bounds,  it  may  be 
done  by  the  court  of  probate,  otherwise  not ;  especially  if  it 
be  assignable  in  lands  alienated  by  the  husband  in  his  life- 
time, the  wife  not  relinquishing  her  right. (/r) 

In  Tennessee  lands  may  be  sold  by  order  of  the  probate 
court  for  purposes  of  partition,  but  the  jurisdiction  extends 
no  further  than  making  a  complete  sale.  If  any  matters  of 
dispute  arise  afterwards,  or  if  any  equitable  claims  exist  at 
the  time,  these  are  cognizable  alone  in  a  court  of  equity. (a;) 

In  Mississippi,  under  the  statute  of  1833,  and  prior  stat- 
utes, the  court  of  probate  can  only  entertain  a  suit  for  parti- 
tion when  lands  are  to  be  immediately  divided  among  heirs 
of  the  intestate,  or  in  case  of  the  death  of  one  joint  tenant, 
tenant  in  common,  or  coj)arcener,  and  the  descent  of  his 
share.  (?/) 

§  282.  A  court  of  probate  usually  has  power  to  order  the 
sale  of  lands  for  the  payment  of  decedent's  debts,  when  the 
jiersonal  property  of  the  estate  is -not  sufficient  for  that  pur- 
pose. It  may,  also,  by  statute,  sell  the  land  of  an  infant, 
and  invest  the  proceeds  according  to  discretion,  as  to  the  best 
interests  of  the  ward.(~)  But  it  has  been  held,  in  New  .Jer- 
sey, that  it  cannot  do  so  except  in  the  case  of  minor  orphans, 
and  hence  not  on  the  application  of  a  guardian  by  nature 

(/)Guil(lford  v.  Madden,  4.^  Ala.  and  Perkins  v.  Fairfield,  11  Mass. 

2SI1.  227. 

(y)Mc'\Villie    v.  Van  Vacter,   35  (ic)Snodgrass    e.    Clark,   44   Ala. 

Miss.  44.5.  190. 

(»')Bent  V.  Weeks,  44  Me.  47.     See,  (./'iBond  v.  Clay,  2  Head.  :Mi*. 

also,  Leavitt  v.  Harris,  7  Mass.  292,  (,y)Sniith  v.  Craig,  10  S.  &  M.  447. 

(2)Stiles  V.  Beeman,  1   Lans.  (N.  Y.)  96. 


PROBATE.  295 

to  sell  lands  for  the  support  of  his  minor  children  not 
orphans,  (a) 

In  Pennsylvania  it  is  held  that  the  sale  of  lands  to  pay  the 
debts  of  a  deceased  partner,  under  order  of  the  orphans' 
court,  only  passes  his  interests,  although  the  legal  title  may 
have  been  wholly  in  him.(/>) 

In  Missouri  the  court  of  probate  has  authority  to  order 
the  private  sale  of  a  minor's  lands ;  but  the  matter  is  appeal- 
able to  the  circuit  court. (c) 

In  Alabama  a  decree  of  insolvency  may  be  connected  with 
a  decree  to  sell  lands  for  the  payment  of  debts  of  an  intes- 
tate; and  the  proceedings  to  declare  an  estate  insolvent  are 
in  rcm.(d) 

A  decree  for  the  sale  of  decedent's  lands  cannot  be  attacked 
collaterally.  (^)  In  Mississippi  it  is  held,  and  I  suppose  it  is  the 
rule  everywhere,  that  the  term  "debt"  does  not  include  com- 
missions of  the  administrator,  and  that  a  sale  of  lands  can- 
not be  ordered  for  the  payment  of  such  commissions. (/) 

Where  a  court  of  probate  vacates  a  sale  previously  made 
by  an  executor  or  administrator,  under  an  order,  it  has  no 
jurisdiction  to  determine  the  rights  and  equities  of  the  pur- 
chaser consequent  upon  the  order  of  vacation.  This  must  be 
left  to  a  court  of  equity,  (f/) 

In  Pennsylvania  it  is  held  that  a  court  of  probate  has 
power  to  set  aside  a  discretionary  sale,  and  order  a  resale  by 
executors  under  a  will,  on  sufficient  cause  shown,  and  can 
also  grant  authority  to  a  trustee,  when  necessary,  to  bid  at  his 
own  sale ;  although  this  is  declared  to  be  a  delicate  power,  and 
one  to  be  cautiously  exercised,  (/t) 

An  order  of  confirmation  can  be  opened  up  for  the  purpose 
of  correcting  errors  therein,  provided  the  application  for  it  be 
made  in  apt  time,  and  under  proper  circumstances,  (i)    And, 

(«)Graham  e.  Houghtiilin,  ;J()  N.  (/jlfollman  «.  Bennett,  44  Miss. 

J.  (1  Vroom,)  557.  322. 

(6)McCormick's   Appeal,   57   Pa.  (r/)Ei(.-hell)erger  «.  JIawlIiorne,  33 

St.  54.  Mtl.  596. 

(c)McVey  v.  McVey,  51  Mo.  418.  (A)I)unclas' Appeal,  64 Pa.  St.  332. 

(rf)Hlne  ».  llussey,  45  Ala.  513.  (/)Mcintgomery  v.  Williamson,  37 

(e)Collin8  v.  Johnson,  Ibid,  .548.  Md.  429. 


206  PROBATE. 

likewise,  an  order  of  sale  may  be  vacated  at  any  time,  if  for 
any  reason  it  is  void;(j)  or,  perhaps,  merely  voidable. 

§  283.  In  some  states,  where  the  income  from  an  orphan's 
estate  will  not  support  him,  a  court  has  power  to  bind  him 
out.(A-) 

§  284.  A  probate  court  has  no  authority  to  order  the  sale  of 
a  homestead  to  pay  debts,  even  under  a  valid  lien  thereon.  (Z) 
This  would  subvert  the  very  meaning  of  all  homestead  statutes, 
which  is  to  provide  a  residence  for  the  family  of  a  deceased 
person,  and  if  valid  liens  were  created  before  the  death  of  the 
head  of  the  family,  they  must  be  enforced  in  another  court 
than  the  court  of  probate,  which  has  no  power  to  enforce  or 
cancel  a  mortgage  or  other  real  estate  lien.(??i) 

§  285.  In  Alabama  a  court  of  probate  may  determine  the 
validity  or  invalidity  of  bequests,  although  the  power  does  not 
extend  to  trusts  created  by  will,  nor  to  litigation  between  the 
executor,  as  trustee,  and  the  cestui  que  trust. (n)  And  under 
this  power  it  may  decide  whether  a  bequest  to  charitable 
uses,  vested  in  the  executor  as  trustee,  is  valid  or  not,  and 
whethfer  it  has  lapsed. (o) 

Testamentary  trusts,  however,  as  such,  are  usuallj'-  outside 
the  jurisdiction  of  a  probate  court;  trusts  belonging  specially 
and  peculiarly  to  the  province  of  chancery  jurisdiction,  as 
also  any  controversy  between  a  trustee  and  the  cestui  que 
trust  in  regard  to  the  settlement  of  accounts. (/))  In  Penn- 
sylvania the  orphans'  court  has  concurrent  jurisdiction  there- 
in. (5) 

§  286.  Partnership  accounts  between  a  deceased  and  sur- 
viving partner  are  not  within  the  purview  of  j^robate  jurisdic- 
tion,(r)  except  given  directly  by  statute,  as  in  Illinois. 

§  287.  In  Missouri  it  has  been  held  that  a  court  of  probate 
has  no  jurisdiction  to  hear  or  decide  a  set-off  presented  by  an 

(j).T()linson  v.  Adm'r,  40  Ala.  247.  (o)Jolmson's  Adm'r  v.  Longuiue, 

(/•)3Iitchell  V.  ilitcliell,  G7  N.  C.  39  Ala.  143. 

307.  (p)Parsons  v.  Lyman,  5  Blatch. 

(/)OiT's  Estate,  29  Cal.  101.  C.  C.  170. 

(//(iGillilaiul?'.  Adm'r,  2  0.  St.  223.  (g) Brown's  Appeal,  12  Pa.  St.  333. 

(/tjHarrison   v.  Harrison,  9   Ala.  (r)Xelson  v.  Green,  22  Ark.  547; 

470.  Booth  V.  Todd,  8  Tex.  137. 


PROBATE.  297 

administrator  against  a  claim  exhibited  for  allowance  by  a 
creditor,  if  tlie  set-off  exceeds  the  amount  of  the  demand,  (s) 

§  288.  In  Alabama  it  is  held  that  an  orphans'  coiu't  has 
no  jurisdiction  of  personal  property  which  at  the  time  of  the 
testator's  death  was  at  his  domicile  in  another  state,  but  after- 
wards removed  into  that  state. (i)  On  the  other  hand,  in 
Louisiana,  if  minors  remove  to  another  state  after  the  death 
of  a  guardian,  and  there  a  guardian  is  duly  appointed  for 
them,  the  appointment  will  not  be  recognized  as  to  property 
in  that  state.  In  order  to  obtain  it  the  non-resident  guardian 
must  be  re-appointed  where  the  property  is  situated,  (?()  which 
is  probably  a  general  rule  elsewhere. 

§  289.  A  court  of  probate  has  no  control  of  the  doings  of 
an  executor  or  administrator  in  another  court,  as  to  prohibit 
him  from  contesting  the  payment  of  promissory  notes  given 
by  the  testator  or  intestate,  sued  on  in  a  court  of  law,  or 
restrain  him  from  prosecuting  a  bill  of  discovery  in  chancery 
for  the  purpose  of  ascertaining  the  consideration  of  such 
notes,  (r) 

5?  200.  In  New  York  it  is  held  that  if  a  will  purport  on  its  face 
to  devise  land  situated  in  the  county,  it  may  be  admitted  to 
probate  without  trying  an  issue  as  to  the  testator's  real  own- 
ership of  the  lands ;  which,  indeed,  is  the  general  rule,  doubt- 
less, (z^-) 

^  291.  In  Pennsylvania  courts  of  probate  are  endowed  with 
a  limited  jurisdiction  as  to  the  specific  performance  of  the 
contracts  of  the  deceased;  and,  also,  in  rescinding  the  decree 
for  specific  performance  thereof,  (.c)  It  may  enforce  the  decree, 
also,  by  attachment. 0/)  And  may  entertain  entire  jurisdic- 
tion, provided  there  is  no  fact  to  be  determined  properly  by  a 
jury,(,'')  and  against  a  vendee  in  favor  of  an  executor  not 
empowered  by  a  will  to  sell  (a) 

(«)Dunnico  «.  Adm'r,  15  Mo.  .'iSS.  (a;)Weyand     «.    Wellcr,    39    Pa. 

(^)Varner  v.  Bevil,  ]7  Ala.  2.Sfi.  448. 

(w)Pray  v.  Herber,  19  La.  An.  499.  (.?/)Cliess'  Appeal,  4  Barr,  r>2. 

(«)Pariier's  Case,  2  Barb.  Cli.  (N.  (£)Cobh's  Ex'r  v.  Burns,  Gl  Pa. 

y.)  154.  St.  278. 

(w)Vreeland     v.     McClelland,    1  (a)Bell's  Appeal,  71  Pa.  St.  465. 
Bradf.  415. 


298  PROBATE. 

The  jurisdiction  obtains,  also,  in  Indiana,  (t)  And  in  Texas,. 
in  sales  of  land  under  an  executor}^  contract  of  the  decedent,  (c) 
and  to  this  the  jurisdiction  is  confined. (<:?) 

^  292.  A  limited  jurisdiction  in  matters  of  fraud  is  essen- 
tial, for  "if  a  court  of  probate  must  pass  upon  matters  involv- 
ing questions  of  fact,  as  it  often  must,  in  deciding  upon  mat- 
ters of  account,  it  must  inquire  into  the  truth  of  such  facts 
judicially ;  and  when  a  question  of  fraud  is  incidental  to  any 
subject  of  which  it  has  jurisdiction,  it  must  take  cognizance 
of  it,  and  try  it  as  any  other  question  of  fact. "(c)  And  where 
fraud  is  inherent  in  an  executor's  or  administrator's  account, 
the  court  of  probate  has  exclusive  jurisdiction  therein  as  an 
incident  of  the  settlement. (/) 

§  293.  Probate  courts,  as  other  courts,  may  have  power  to 
order  a  change  of  venue  in  a  proper  case.(5^) 

§  294.  The  ordinary  principles  of  limitation  apply  to  ad- 
ministrators and  executors,  (/i) 

§  295.  A  probate  court  has  no  authority  to  cite  the  admin- 
istrator of  an  administrator  to  settle  the  account  of  his  intes- 
tate with  the  estate  of  which  he  had  been  the  administra- 
tor, (f) 

§  296,  Eents  for  real  estate  accruing  after  the  decedent's 
death  are  not  a  part  of  the  assets  of  the  estate,  and  so  form 
no  basis  of  administration. (j) 

§  297.  The  issuing  of  habeas  corpus  writs  is  not  within  the 
province  of  a  court  of  probate, (A:)  so  that  it  has  no  power  to 
take  cognizance  of  proceedings  by  a  father  to  recover  posses- 
sion of  a  child  alleged  to  be  wrongfully  withheld  from  him.(Z) 

§  298.  A  court  of  probate  may  enforce  its  orders  to  an  exe- 
cutor or  administrator  by  attachment  for  disobedience, (m) 
but  in  New  York  cannot  punish  as  for  a  criminal  contempt,  (w) 

(5)Deh:irt  v.  Dehart,  15  Ind.  167.  (i)Bush  v.  Lindsey,  4A  Cal.  121. 

(cjTodd  V.  Ca  dwell,  10  Tex.  236.  (j)KoIilev  v.  Kuapp,  1  Bradf.  (N. 

(rf)Boolh   V.  Todd,  8  Tex.  137.  Y.)  242. 
(c)Wade  v.  Lobdell,  4  Cush.  512.  (A)Lee's  Case,  1  Min.  60. 

(/)Sever  v.  Russell,  Ibid,  517.  (OLowrey  t?.  Holden,  41  Miss.  410. 

((7)People  t).  Almy,  46  Cal.  245.  (/»)Saltus  v.  Saltus,  2  Lans.  (N. 

(7i;)Emerson D.Thompson,  16  Mass.  Y.)  9. 
428.  (7i)Watson's  Case,  3  Lans.  408. 


PROBATE.  29{> 

and  so  cannot  fine,  and  then  imprison  on  the  fine.(o)  How- 
ever, it  is  different  in  Pennsylvania,  Illinois  and  Missouri, 
where  a  recalcitrant  executor  or  administrator  may  be  impris- 
oned for  contempt.  (^) 

§  299.  As  an  incident  of  the  supervision  of  courts  of  pro- 
bate over  estates,  their  jurisdiction  is  exclusive  in  matters 
of  settlement  and  distribution,  (strictly  such,)  including  the 
claims  of  creditors  next  of  kin  and  legatees,  (5)  and  also, 
per  consequei/ce,  of  the  plea  of  an  administrator  that  he  had 
fully  administered,  (r)  And  a  final  decree  of  a  probate  court 
making  distri])ution  of  an  entire  estate  is,  unless  reversed  or 
modified  by  an  appeal,  an  investiture  in  the  distributees  of 
the  absolute  right  and  title  thereto,  insomuch  that,  while  an 
appeal  is  pending  from  such  decree,  if  the  court  makes 
another  order  making  a  different  distribution  in  jDart,  the  lat- 
ter order  is  wholly  void.(.s) 

And  a  court  has  jurisdiction  to  examine  and  allow  a  final 
account  rendered  by  an  administrator  after  his  letters  have 
been  revoked,  (i)  And  it  is  a  general  principle  that  it  can 
only  be  deprived  of  its  jurisdiction  for  settlement  by  some 
process  which  would  remove  the  cause  to  another  tribunal; 
as,  for  instance,  appeal.  And  the  jurisdiction  thereon  re- 
mains, even  if  the  administrator,  on  citation,  had  neglected 
to  settle  his  accounts,  and  leave  had  been  granted  to  sue  on 
his  bond  for  the  neglect,  provided  no  suit  be  actuall}^  com- 
menced. (?/) 

If  there  be  a  partial  settlement  with, an  heir,  and  therein 
a  sum  of  money  be  left  in  the  hands  of  the  executor  to  pay 
an  illegal  legacy,  the  probate  court  has  jurisdiction  to  com- 
pel a  distribution  of  that  sum  as  assets. (r)  And  it  is  a  gen- 
eral principle  that  on  an  accounting  the  jurisdiction  extends 

(r>)Sinie,  ;')  Lans.  466.  (/•)Bind's  Ex'ro.  Adm  r,  2  Grunt, 

( p)Tome's  Appeal,  r.o  Pa.  St.  2!t7  ;  3-53. 
Piggott   V.    Riimey,    J     tScain.    146;  (.s)Garnind's  Estate,  36  Cal.  277. 

Greene  Co.  «.  Uo.se,  .38  Mo.  301.  (/)  Davis  v.  Clieves,  32  Miss.  317. 

(<?)Linsenbigler  t).  Gourlej',  r>6  Pa.  (//)Sturtevant  «.  Tallmau,  27  Me. 

St.  166.  82. 

(«)\Vells  V.  .Mitciiell,  3'.t  Miss.  801. 


300  PBOBATB. 

usually  to  the  trial  and  decision  of  every  question  necessary 
to  a  settlement.  The  legatees  may  contend  that  the  execu- 
tor has  more  assets  than  he  acknowledges,  and,  on  the  other 
hand,  he  may  show  in  defence  that  what  is  claimed  as  assets 
is  his  own  property,  and  not  that  of  the  estate. (/r)  And  the 
correctness  of  an  inventory  may  thus  be  disputed  likewise. (a;) 
However,  the  jurisdiction  of  the  court  is  exhausted  when  the 
order  of  distribution  is  made,  and  cannot  extend  to  enforcing 
the  collection  of  the  amounts,  (y)  The  distribution  may  be  in 
kind,  and  even  where  there  are  minors. (^) 

A  settlement  may  be  opened  and  reviewed  on  sufficient 
cause  shown,  even  if  it  be  a  final  settlement,  provided  it  was 
made  in  proper  form,  with  due  jurisdic'tion.(a) 

§  300.  There  are,  however,  distinct  limitations  to  the  juris- 
diction in  matters  of  settlement  and  distribution.  As,  for 
instance,  an  administrator  cannot  be  allowed  to  set  off  a  debt 
due  him  from  a  distributee  ;(i)  nor,  in  Alabama,  be  allowed 
his  attorney's  fees;(c)  nor  appropriate  a  distributee's  share 
to  the  payment  of  his  dehts,(d)  except  a  debt  due  directly  to 
the  estate,  which  may  be  treated  as  an  advancement  ;(e)  nor 
adjudicate  upon  the  validity  of  an  assignment  of  a  distributive 
share ;(/)  nor  refuse  a  distributee  his  share  on  the  ground 
that  he  has  made  such  an  assingment;((/)  or,  consequently, 
entertain  a  petition  to  enforce  an  alleged  assignment ;(/?)  nor, 
after  the  death  of  an  admhiistrator,  to  enforce  against  his 
personal  representative  a  decree  rendered  against  the  admin- 
istrator on  final  settlement  ;(i)  nor  decide  upon  the  validity 
of  a  bequest. (J) 

(w)Merchant  «.  Merchant,  2  Brad.  (c) Wright's  Adm'r  v.  "Wilkinson, 

<N.  Y.)432.  41  Ala.  26S. 

(a;)Mims'  Adm'r  v.  Mims,  39  Ala.  (d)Verac"s  Estate,  35  Cal.  393. 

716.  (f)Springcr"s  Appeal,  29  Pa.  St. 

(?/)McLauglilin  v.  McLaughlin,  4  20S. 
O.  St.  508.  (/)Locke   v.  "Williams,   36  Miss. 

(2) Williams  «.  Holmes,  9  Md.  281.  187. 

(a)Pendleton  v.  Prestridge,  12  S.  (5')Re:ul  v.  Brown,  Ibid,  329. 

&  M.  303.  ^  (ZOHill  V.  Hardy,  34  Miss.  289. 

(^»)Bradshaw's  Appeal,  3  Grant,  '  (?')Dilworth».  Carter,  32  Miss.  206. 
109 ;  Carter's  Appeal,  10 Pa.  St.  144.  (j) State  v.  Warren,  28  Md.  339. 


rnoRATE.  301 

§  301.  It  is  not  a  disqualification  in  a  judge  to  liave  at- 
tested a  will.  He  can,  nevertheless,  decide  upon  its  pro- 
bate; (A")  and  if  the  judge  be  interested,  or  of  kin,  his  acts  are 
not  void,  but  only  voidable.  (Z) 

§  302.  Like  other  courts,  a  court  of  probate  may  be  con- 
fined to  terms. (///)  Yet  statutes  concerning  times  and  places 
of  holding  court  are  liberally  construed.  (7i)    . 

(/l) Patten  v.  Tallman,  27  Me.  17.  (m) White  v.  Kiggs,  27  Me.  114. 

(i)Hine  a.  Hussey,  45  Ala.  496.  (w) Kimball  «.  Fisk,  39  N.  H.  110. 


302  CEIMES. 


CHAPTER  7. 

CRIMES. 

4  303.  General  remarks. 
3(J4.  Source  of  criminal  jurisdiction  as  to  United  States  courts. 
30.").  Statutory'  jurisdiction  of  United  States  courts. 

306.  Abuse  of  criminal  law. 

307.  Res  adjudicf/fa  in  criminal  prosecutions — explanatiou  of  "  twice  in 

jeopardy.'" 

308.  Arrest  by  private  citizens. 

309.  PunLsliment  of  attempts. 

310.  Wrongful  intent. 

311.  Effect  of  a  pardon. 

312.  Venue. 

313.  E.Ktra-territorial  and  continuing;  offences. 

314.  Illegal  voting  beyond  the  state. 

315.  General  responsibility  of  citizens  for  acts  done  abroad. 

316.  Explanation  of  this  by  (Jhristiancy,  J. 

317.  Offences  by  means  of  agencies. 

318.  Offences  in  foreign  jurisdictions. 

319.  Offences  in  different  counties. 

320.  Distinct  coustitutent  acts  in  different  states  or  counties. 

321.  Foreigners  committing  offences  within  the  jurisdiction. 

322.  Extradition. 

§  303.  As  to  criminal  jurisdiction,  relating  to  offences  com- 
mitted upon  the  high  seas,  we  have  already  spoken  in  the 
chapter  on  admiralty,  and  hence  will  not  refer  particularly 
to  this  class  of  crimes  herein.  And,  of  course,  our  remarks 
must  he  confined  simply  to  jurisdictional  topics,  these  only 
falling  within  the  compass  of  this  work. 

Our  complicated  sj-stem  of  state  and  national  governments 
renders  a  distinction  recpiisite  throughout  as  to  the  spheres 
of  jurisdiction  in  the  state  courts,  and  in  the  United  States 
courts,  respectively.  And  in  this  particular,  also,  we  shall 
have  occasion  to  treat  some  topics  in  the  second  volume  of 
this  work,  which  topics  will  likewise  be  omitted  here ;  and  we 


I 


CRIMES.  303 

refer  the  reader  to  "Res  Adjudicata"  for  some  of  these;  and 
also  for  the  subject  of  Former  Convictions,  etc. 

§  304.  After  some  hesitation  and  wavering  in  the  line  of 
decisions,  it  is  now  declared  to  be  "the  settled  law,  univers- 
ally acted  upon  by  the  United  States  courts,  that  they  cannot 
resort  to  the  common  law  as  a  source  of  criminal  jurisdiction. 
However,  that  body  of  jurisprudence  may  furnish  these  courts 
.^'ith  rules  of  procedure,  definition,  and  construction;  they 
have  no  power  to  try  any  offences,  except  such  as  are,  in 
some  form,  prohibited  by  the  constitution,  or  by  act  of  Con- 
gress." And  on  this  ground,  in  dismissing  a  prosecution  for 
forgery,  brought  under  an  act  passed  March  3,  1825,  which 
provided,  in  regard  to  ceded  places,  that  "if  any  offence  shall 
be  committed  in  any  of  the  places  aforesaid,  the  punishment 
of  which  offence  is  not  specially  provided  for  by  any  law  of 
the  United  States,  such  offence  shall,  upon  conviction  in  any 
court  of  the  United  States  having  cognizance  thereof,  be  lia- 
ble to,  and  receive,  the  same  punishment  as  the  laws  of  the 
state  in  which  such  fort,  dock-yard,  navy-yard,  arsenal, 
armory,  or  magazine,  or  other  place,  ceded  as  aforesaid,  is 
situated,  jorovide  for  the  like  offence  when  committed  within 
the  bodj^  of  any  county  of  such  state,"  and  which  act  had 
been  decided  to  relate  only  to  the  laws  of  the  several  states  in 
force  at  the  time  of  the  enactment  thereof,  and,  per  conse- 
quence, to  the  places  at  that  time  ceded,  whereas  this  alleged 
forgery  was  committed  in  a  place  subsequently  ceded,  namely, 
the  United  States  custom-house  at  New  York,  Slupuuin,  J., 
said :  "I  regret  that  I  am  compelled  to  announce  this  result. 
The  crime  charged  in  the  indictment  is  a  grave  one,  and  I 
understand  that  one  of  the  defendants  is  accused  of  having 
committed  the  act  while  in  the  employ  of  the  government  in 
an  official  position,  the  duties  of  which  embraced  the  super- 
vision of  bonds  of  the  character  of  the  one  alleged  to  be 
fraudulent.  I  regret  that  the  charge  cannot  be  investigated 
in  this  court,  and  the  defendants  be  acquitted,  if  found  inno- 
cent, and,  if  guilty,  be  properly  punished.  But  I  am  satisfied 
that  this  court  has  no  power  to  try  the  case,  on  this  indict- 


304  CRIMES. 

ment,  and  must,  therefore,  grant  the  motion  that  the  indict- 
ment be  quashed. "(a) 

The  statute  of  1866,  however,  obviates  the  difficulty  met  in 
that  case,  by  referring  specifically  to  future  cessions,  and 
making  the  rule  applicable  thereto,  the  language  being:  "If 
any  offence  shall  be  committed  in  any  place  which  has  been» 
or  shall  hereafter  be,  ceded  to  and  under  the  jurisdiction  of 
the  United  States,  which  offence  is  not  prohibited,  or  the  pun- 
ishment thereof  is  not  specially  provided  for,  by  any  law  of 
the  United  States,  such  offence  shall,  upon  conviction  in  any 
court  of  the  United  States  having  cognizance,  be  liable  to 
and  receive  the  same  punishment  as  the  laws  of  the  state  in 
which  said  place  is  or  may  be  situated,  now  in  force,  pro- 
vide for  the  like  offence  when  committed  within  the  juris- 
diction of  such  state,  and  no  subsequent  repeal  of  any  such 
state  law  shall  affect  any  prosecution  for  such  offence  in  any 
of  the  courts  of  the  United  States. "(/>) 

§  305.  In  regard  to  the  statutory  jurisdiction  of  the  United 
States  courts  I  avail  m^'self  of  the  very  comprehensive  sum- 
mary of  Mr.  Wharton,  namely:  "The  offences  thus  particu- 
larly enumerated  by  congress  may  be  collected  under  five 
general  heads :  First,  those  against  the  laws  of  nations ;  s<?c- 
ond,  those  against  federal  sovereignty ;  third,  offences  against 
the  persons  of  individuals;  fourth,  offences  against  prop- 
erty; and,  ,fifth,  offences  against  public  justice.  Under  the 
lirst  head,  namely,  offences  against  the  laws  of  nations,  may 
be  classed  the  accepting  and  exercising  by  a  citizen  of  a 
commission  to  serve  a  foreign  state  against  a  state  at  peace 
with  United  States ;  fitting  out  and  arming,  within  the  limits 
of  the  United  States,  any  vessel  for  a  foreign  state  to  cruise 
against  a  state  at  peace  with  the  United  States;  increasing, 
or  assisting  within  the  United  States,  any  force  of  armed  ves- 
sels of  a  foreign  state  at  war  with  a  state  with  which  the 
United  States  are  at  peace;  setting  on  foot,  within  the  United 
States,  any  military  expedition  against  a  state  at  peace  with 

(a)U.  S.  V.  Barney,  5  Blatch.  C.C.  (6)Stat.  April  5,  1666. 

303. 


CRIMES.  JiOo 

the  United  States;  suing  forth  or  executing  any  wnt  or 
process  against  any  foreign  minister,  or  his  servants,  the 
writs  heing  also  declared  void ;  and  violating  any  passport ; 
or,  in  any  other  way,  infracting  the  laws  of  nations,  by  vio- 
lence to  an  embassador  or  foreign  minister,  or  their  domestics. 
Under  the  second  head,  namely,  offences  against  federal 
sovereignty,  may  be  classed  treason  against  the  United  States, 
and  misprision  of  treason ;  holding  any  treasonable  corres- 
pondence with  a  foreign  government ;  enlisting  by  a  citizen 
within,  or  going  out  of  the  United  States  with  intent  to  enlist 
in  the  service  of  any  foreign  state ;  fitting  out  and  arming  a 
vessel  by  a  citizen  of  the  United  States,  out  of  the  United 
States,  with  intent  to  cruise  against  citizens  of  the  United 
States;  political  offences  against  the  federal  government, 
committed  by  subjects  abroad;  and  the  various  offences 
defined  in  the  statutes  relating  to  the  post-office,  to  federal 
coin  and  notes,  to  piracy,  revolt,  and  the  slave  trade.  Under 
the  third  head,  namely,  offences  against  the  persons  of  indi- 
viduals, may  be  classed  murder  or  manslaughter,  in  any  fort, 
dock-yard,  or  other  place  or  district  of  country  under  the 
sole  and  exclusive  jurisdiction  of  the  United  States ;  murder, 
manslaughter  or  rape,  upon  the  high  seas,  or  in  any  river, 
haven,  basin,  or  other  like  place,  out  of  the  jurisdiction  of  a 
state,  which,  if  committed  within  the  body  of  a  county, 
■would,  by  the  laws  of  the  United  States,  be  punished  with 
death,  and  the  offences  covered  by  the  statutes  protecting 
persons  on  the  high  seas.  Under  the  fourth  head,  namely, 
offences  against  property,  may  be  classed  embezzling  or  pur- 
loining any  arms  or  other  ordnance,  belonging  to  the  United 
States,  by  any  person  having  the  charge  or  custody  thereof, 
for  purposes  of  gain,  and  to  impede  the  service  of  the  United 
States ;  burning  or  aiding  to  burn  any  dwelling-house,  store 
or  other  buildings  within  any  fort,  dock-yard,  or  other  place 
under  the  jurisdiction  of  the  United  States;  setting  fire  to 
or  burning,  or  aiding  to  set  fire  to  or  burn,  any  arsenal,  armory, 
etc.,  of  the  United  States,  or  any  vessel  built  or  building, 
or  any  materials,  victuals,  or  other  public  stores;  taking  or 
v.l— 20 


306  GRIMES. 

cjirrying  away,  with  intent  to  steal,  the  personal  goods  of 
another  from  within  any  of  the  places  under  the  sole  and 
exclusive  cognizance  of  the  United  States,  or  being  accessory 
thereto;  and  the  various  forms  of  robbery  and  larceny  on  the 
high  seas.*  Under  the  fifth  head,  namely,  offences  against 
public  justice,  may  be  classed  bribing  any  United  States 
judge,  with  intent  to  obtain  any  opinion,  judgment,  or  decree, 
in  any  suit  depending  before  him;  receiving  such  bribe; 
obstructing  any  officer  of  the  United  States  in  the  service  of 
any  legal  writ  or  process  whatsoever;  rescuing  any  person 
committed  for  or  convicted  of  any  offence  against  the  United 
States ;  demanding  and  receiving,  by  reason  of  his  office,  any 
greater  fees  than  those  allowed  by  law,  by  a  public  officer  or 
his  deputy;  endeavoring  to  impede,  intimidate,  or  influence 
any  juror,  witness,  or  officer,  in  any  court  of  the  United 
States,  in  the  discharging  of  his  duties ;  or,  by  threats  or 
force,  obstructing,  or  impeding,  or  endeavoring  to  impede, 
the  due  administration  of  justice  therein ;  bribing  or  attempt- 
ing to  bribe  the  president  or  any  director  of  the  bank  of  the 
United  States;!  committing  perjury,  or  causing  another  to  do 
so,  in  any  suit  or  controversy  depending  in  any  of  the  courts 
of  the  United  States,  or  in  an}^  depositions  taken  in  pursu- 
ance of  the  laws  of  the  United  States,  together  with  other 
forms  of  false  oaths  forbidden  by  act  of  congress. "(6) 

§  306.  In  no  case  can  a  criminal  law  be  justifiably  em- 
ployed merely  to  enforce  the  payment  of  a  debt.  And  where 
this  was  attempted  by  one  who  sued  out  a  warrant,  and 
handed  it  to  an  officer,  saying  that  all  he  wanted  was  his 
money,  and  that  if  the  accused  woukl  pay  it  he  desired  the  offi- 
cer not  to  make  the  arrest;  but  the  arrest  was  made,  however, 
and  the  case  afterward  dismissed  by  the  prosecuting  attorney, 
the  party  suing  out  the  warrant  was  made  to  respond  in  dam- 
ages in  an  action  for  malicious  prosecution.     The  court,  on 

*h  will  he  noticed  he  has  omitted      which  has  of  late  beea  brought  out 
inadvertently  au  important  branch,      very  conspicuously, 
namely,  defraudino;  the  public  rev-  fObsolete. 

euue  by  officers  and   individuals,  (A)  Wharton  on  Crim.  Law,  ^U74- 

17y. 


CRIMES.  307 

appeal,  declared  "the  criminal  law  was  not  designed  to  assist 
in  the  collection  of  debts,  and  he  who  attempts  to  so  use  it 
must  expect  to  smart  for  it.  "(c) 

However,  it  is  sometimes  provided  by  statute  that  fines  may 
be  recovered  in  a  civil  action.  In  such  a  case  the  rule  is 
that  where  an  act,  not  indictable  at  common  law%  is  prohib- 
ited by  statute,  which  gives  a  particular  method  of  proceed- 
ing, such  method  must  be  strictly  pursued,  and  an  indictment 
will  not  lie;  although,  if  the  act  is  merely  prohibited,  and  no 
method  is  pointed  out,  an  indictment  will  lie.(f?)  But  a  stat- 
ute may  provide  that  the  proceeding  may  be  either  by  civil 
action  or  by  indictment  ;(e)  as,  for  example,  in  libel. 

§  307.  It  is  a  settled  principle  that  an  accused  is  not  to  be 
iwice  put  in  jeopardy  for  the  same  offence.  And  sometimes  this 
appears  to  be  considered  as  a  safeguard  peculiar  to  criminal 
prosecutions.  But  it  seems  to  me  it  is  nothing  more  than 
the  universal  principle  of  res  arljnd'icnta  applied  to  criminal 
proceedings.  The  principle,  however,  is  not  to  be  held  so  as 
to  include  the  idea  that  a  conviction  confers  an  immunity  for 
crimes  thereafter  committed,  while  the  sentence  continues. 
Thus,  if  one  is  confined  for  life  in  the  penitentiary,  and  while 
there  commits  murder,  he  can  be  tried,  convicted,  and  sen- 
tenced for  the  second  crime,  notwithstanding  the  operation 
of  the  first  sentence. (/)  And,  moreover,  it  has  been  held 
that  where  one  confined  in  the  penitentiary  breaks  out,  and 
while  at  large  commits  another  crime,  and  is  thereon  convicted 
and  returned  to  the  penitentiary  on  a  new  sentence,  the 
officers  of  the  prison  may  compel  him  to  serve  out  his  unex- 
pired term  on  the  former  sentence,  and  the  new  sentence  will 
begin  at  the  expiration  thereof. (/) 

Nor  is  the  principle  violated  by  the  operation  of  a  statute 
providing  increased  punishments  for  a  second  offence,  etc., 
unless  the  increased  punishment  is  inflicted  on  information 
afterwards  filed  separately,  and  is  not,  as  it  should  be,  merely 

(c)Kelloy  V.  Sage,  12  Kan.  112.  (/)State  «.  Connoll,  40  Mo.  2«fi. 

(^/)Statc  V.  lluirschmidt,  47  Mo.  AH   crimes  are   several,   eveu  if 

7(;.  committed  by  two  or  more  persons 

(«)!5tate  V.  StcAvart,  Id.  385.  jointly.    State  ».  Brown,  49  Vt.  437. 


3118  CRIMES. 

iiu'liuleil  in  the  sentence  passed  on  the  second  conviction.(5f) 
In  cases  of  increased  punishment  the  increase  is  not  to  be 
considered  as  visited  on  the  first  offence,  thereby  punishing  it 
twice,  but  only  upon  the  persistence  in  crime,  which  evinces 
a  depravity  that  merits  a  greater  punishment,  and  needs  to 
be  restrained  by  severer  penalties,  than  if  it  were  the  first 
offence. (/<)  "The  true  view  of  it,"  say  the  Massachusetts 
court,  "we  think,  is  that  it  [the  statute]  imposes  a  higher 
punishment  for  the  same  offence  upon  one  who  proves,  by  a 
second  or  third  conviction,  that  the  former  punishment  has 
been  inefficacious  in  doing  the  reform  for  which  it  was 
designed,  "(i) 

Nor  is  it  an  objection,  therefore,  that  the  first  offence  was 
committed  before  the  passage  of  the  act  authorizing  this  in- 
creased punishment,  for  this  does  not  make  the  act  an  ex 
post  facto  law,  since  it  is  not  the  pant  act  whicli  is  punished, 
but  only  the  present,  persistent  depravity ;(J)  although  it 
is  true  that  a  party  must  know  beforehand  the  extent  of  his 
punishment  incurred  by  a  violation,  so  that  the  second  offence 
for  which  increased  punishment  is  inflicted  must  be  commit- 
ted, and  not  merely  tried,  subsequently  to  the  passage  of  the 
statute  providing  the  increase  of  penalty. 

Nor  is  it  any  objection  that  the  first  offence  was  committed 
in  another  state  and  before  the  passage  of  the  act,  (A;)  the 
principle  being,  as  above  stated,  that  the  punishment  acts  on 
the  present  depravity  only. 

§  308.  It  may  not,  I  judge,  be  amiss  here  to  remark  that  there 
is  a  kind  of  distributive  jurisdiction  not  confined  to  the  courts, 
nor,  indeed,  even  to  public  officers ;  but  it  may  be  exercised  even 
by  private  citizens.  On  this,  Rcdjield,  J.,  remarked  very 
forcibly,  in  a  Vermont  case,  where  counterfeit  coin  was  taken 
and  detained  hj  officers  without  a  warrant  formally  issued : 
"As  the  matter  stands,  the  defendant's  authority  [in  an  action 
of  trover]  must  rest  merely  upon  general  grounds  of  prevent- 

(r/)Plunibly  v.  Commouwealth,  2  (?)Pliimbly   v.  Commonwcaltb,  2 

Met.  (Mass.)  413,  Met.  (3Iass.)  415. 

(/ijPeople  t),  Stanley,  47  Cal.  Ilfi.     .       ;  /jKoss'  Case.  2  Pick.  169. 
(A)Kand  v.  Conimonwcaltli,  9  Gratt.  742. 


CRIMES.  309 

ive  justice,  aside  from  any  statute  whatever  on  the  sn])ject. 
All  governments,  upon  the  most  obvious  principles  of  neces- 
sity, exercise  more  or  less  of  preventive  force  in  regard  to  all 
subjects  coming  under  their  cognizance  and  control.  This  is 
in  analogy  to  the  conduct  of  individuals,  and,  indeed,  of  all 
animal  existence.  Many  of  the  instincts  of  animals  exhibit 
their  most  astonishing  developments  in  fleeing  from  the  ele- 
ments, from  disease,  and  from  death,  at  its  most  distant 
sound,  long  before  the  minutest  symptom  appears  to  rational 
natures.  This  is  the  great  secret  of  j^ersonal  enterprise  and 
success.  So,  too,  in  the  history  of  civil  governments,  preven- 
tion is  more  important,  and  far  more  available,  than  cure. 
All  sanitary  cordons  and  preventive  regulations,  everything 
in  regard  to  the  police  of  our  cities  and  large  towns,  indeed, 
jDrohibitions  of  lotteries,  gambling  houses,  brothels,  and  dis- 
orderly taverns,  whether  done  by  general  statute,  or  mere  police 
regulations,  all  come  under  the  right  of  preventing  more  seri- 
ous injuries  by  stifling  the  fountains  of  evil.  Ohsta  prhicipiis 
is  as  just  a  maxim  here  as  anywhere.  And,  in  doing  all  this, 
it  must,  of  course,  somewhat  interfere  with  the  natural  rights 
of  individuals.  One  infected  with  contagion  is  instantly  re- 
moved beyond  the  reach  of  contact.  A  ship  or  cargo  coming 
from  an  infected  port  is  subjected  to  long  delay  and  great 
expense  to  prevent  the  possibility  of  spreading  jDestilence. 
This  may,  in  some  instances,  endanger  the  lives  and  health 
of  the  individuals  concerned,  and  must  always,  more  or  less, 
aft'ect  property  and  abridge  personal  liberty.  And  it  is  often 
done  without  any  special  law  of  the  state,  and  may  always 
be  so  done,  as  in  the  case  of  cholera  suddenly  breaking  out 
in  some  remote  inland  town.  And  what  would  be  thought  of 
an  action  of  assault  and  battery  brought  against  a  health 
officer  who  removed  the  plaintiff  from  a  town  or  village  to 
prevent  contagion ;  or  against  the  peace  officer  who  laid  his 
hand  upon  one  under  an  honest  belief  that  he  was  insane,  or 
when  he  was  in  fact  so,  and  rushing  through  the  street  with 
a  lighted  torch  to  burn  some  public  edilice,  or  commit  some 
other  irreparable  injury;  or,  if  you  please,  against  the  sheriff 
of  the  county,  who,  by  the  direction  of  the  prosecuting  officer 


310  CRIMES. 

for  the  state,  detains  counterfeit  coin,  or  those  partly  finished? 
We  Ihid  no  such  actions  in  the  books,  and  the  want  of  prece- 
dents shows  the  general  sense  upon  the  subject,  when  it  is  noto- 
rious that  the  public  officers  in  our  cities  subject  persons  sus- 
pected of  crime,  and  every  species  of  engine  or  material  with 
which  it  is  even  suspected  they  intend  to  operate,  to  just  such 
restrictions  as  they  deem  proper,  and  this  without  regard  to 
any  special  provisions  of  statutory  enactments.  The  same  is 
true,  also,  of  those  suspected  of  infection.  And  in  regard  to 
unwholesome  provisions,  if  found  to  be  so  in  a  dangerous 
degree,  there  is  no  doubt  they  might  even  be  destroyed.  So, 
too,  of  books  and  prints,  and  of  all  other  devices  to  corrupt 
the  public  morals,  property  cannot  exist  in  them.  They  are 
regarded  as  pul)lic  nuisances,  and  any  one  may  destroy  them. 
So,  too,  certain  trades  are  considered  common  nuisances  in 
places  of  great  public  resort  or  concourse ;  like  smelting  of  cer- 
tain metals,  slaughtering  animals,  etc.,  which  would  be  likely 
to  endanger  the  j)nblic  health.  And  gambling  houses  and 
brothels  have  been  regarded  as  common  nuisances  in  the 
cities,  and  might  justly  be  so  regarded  wherever  they  exist, 
perhaps.  Society,  in  all  these  cases,  and  many  others,  has 
the  right  to  anticipate,  in  order  that  it  may  prevent  the  injury 
which  is  thus  threatened.  If  it  were  not  so,  men  in  a  social 
state  vvould  be  far  more  powerless  for  purposes  of  defence 
tiian  in  a  natural  state.  All  will  admit  the  right  to  restrain 
a  madman,  or  a  mad  animal,  from  committing  injury.  And 
is  tlie  rational  man,  or  the  senseless  material,  which  threat- 
ens crime  or  irreparable  injury,  less  subject  to  control  than 
the  maniac  or  his  torch?  And  if  the  incendiary  could 
hardly  be  expected  to  have  an  action  of  trespass,  or  trover, 
for  his  dark  lantern,  or  the  bank  robber  for  his  saws  and  files, 
and  false  keys,  can  the  counterfeiter,  or  his  accomplice,  any 
more  maintain  an  action  for  his  base  coin,  whether  in  a  fin- 
ished or  unfinished  state? 

"The  right  of  private  persons  to  make  arrests  on  their  own 
mere  motion,  without  any  special  statute,  and  without  ex- 
press warrant,  was  distinctly  recognized  in  the  discussion  of 
a  late  case,  in   the  common   picas,  in  Westminster  Hall — 


CRIMES.  cJll 

Elliott  V.  Allen,  1  M.  G.  &  Scott,  18,  (50  E.  C.  L.  38,  1845)— 
long  since  the  transaction  occurred  out  of  which  the  present 
action  grew;  and  this  right,  in  every  subject  of  the  realm,  is 
there  recognized  for  the  mere  purpose  of  preventing  crime; 
and  if  the  right  of  personal  liberty,  which  is  always  recognized 
among  the  most  sacred  of  civil  rights,  may  be  thus  violated 
by  private  jiersons  upon  their  own  mere  motion,  much  more, 
it  would  seem,  may  such  rights  of  property,  as  one  may  be 
supposed  to  have,  either  in  counterfeit  coin,  or  in  the  ma- 
terials in  an  unfinished  state,  be  disregarded  by  a  public 
officer. 

"The  following  is  the  law,  as  laid  down  in  6  Bac.  Ab.,  title, 
'Trespass  D,'  579,  upon  that  subject:  A  private  person  may, 
without  express  warrant,  arrest  persons  who  are  actually 
fighting,  and  keep  them  in  custody  until  their  passion  is  over. 
Has  that  state  of  safety  yet  occurred  in  regard  to  this  coin  ? 
If  surrendered  it  would  seem  there  should  be  some  security 
that  it  should  not  be  applied  to  the  same  use — certainly  not 
in  this  state.  So,  it  is  said  by  Bacon,  one  may  arrest  one 
coming  to  assist  another  in  a  fight.  Id,  1  Hawk.  PL  Cr.  c. 
3,  §  11.  So  may  one  arrest  another  who  is  on  the  point  of 
committing  murder  or  treason.  So  he  may  justify  breaking 
and  entering  one's  house,  and  imprisoning  him,  'to  prevent 
his  committing  murder  on  his  wife.'  Handcock  v.  Baker,  2 
B.  &  P.  200.  'A  private  person  may,  without  an  express 
warrant,  confine  a  person  disordered  in  his  mind  who  seems 
disposed  to  do  mischief  to  himself  or  any  other  person.' 
Bro.  Ab.,  title,  'False  Imprisonment,'  25,  28.  So  he  may  arrest 
a  night-walker.   Id, 

"One  who  sets  himself  deliberately  at  work  to  contravene 
the  fundamental  laws  of  civil  governments — that  is,  the 
security  of  life,  liberty  or  property — forfeits  his  own  right  to 
protection  in  those  respects  wherein  he  was  studying  to  in- 
fringe the  rights  of  others.  The  man  who  attempts  the  life 
or  liberty  of  another  forfeits,  for  the  time,  all  right  to  the 
protection  of  his  own  life  or  person ;  and  the  person  assailed 
may  justly  destroy  both,  if  necessary,  in  his  own  defence,  or 
if  he  may  be  fairly  supposed  to  have  esteemed  it  necessary 


312  CRIMES. 

under  the  circnmstances.  So,  too,  if  any  member  of  the  body 
politic,  instead  of  putting  his  property  to  honest  uses,  converts 
it  into  an  engine  to  injure  the  life,  liberty,  health,  morals, 
peace  or  property  of  others,  he  thereby  forfeits  all  right  to  the 
protection  of  his  bona  fide  interest  in  such  property  before  it 
was  put  to  that  use.  And  he  can,  I  apprehend,  sustain  no 
action  against  any  one  who  withholds  or  destroys  his  property 
with  the  honaficU  intention  of  preventing  injury  to  himself  or 
others. ""(/) 

§  309.  It  is,  doubtless,  somewhat  on  this  principle  of  pre- 
ventive jurisdiction  that  sometimes  mere  attempts  to  commit 
crime  are  punishable.  In  New  York  it  has  been  held  that 
under  an  indictment  for  burglary,  on  the  trial  of  which  the 
proof  fails  to  establish  the  crime  because  the  entry  had  been 
prevented,  the  jury  may  find  that  an  attempt  to  commit'  a 
burglary  had  been  committed,  this  being  expressly  authorized 
as  to  crimes  in  general  by  the  statute.  Such  an  attempt, 
however,  must  be  manifested  by  some  act  toward  its  accom- 
plishment, though  inetfectual  or  prevented.  But  this  act 
needs  not  to  be  proximate,  but  may  be  remote;  so  that  a  mere 
solicitation  to  commit  a  crime  maj^  sometimes  be  regarded 
and  punished  as  an  attempt. (?»)  But,  of  course,  the  act  must 
tend  toward  the  accomplishment  of "  the  result.  And  the 
intention  enters  into  the  offence  of  an  attempt,  as  well  as  the 
actual  commission  of  crimes, (;/)  so  that  whatever  prevented 
the  consummation  must  be  independent  of  the  will  of  the 
party  accused. (o)  And  there  cannot  properly  be  a  conviction 
when  there  has  been  a  mere  partial  preparation  under  the 
intention,  but  the  time  proposed  for  the  consummation  was 
so  distant  as  to  leave  ample  room  for  the  locus  penitent'ue,  and 
to  thus  render  it  doubtful  whether  the  accused  had  fully 
resolved  on  the  commission  of  the  act. (7;) 

§  310.  A  wrongful  intent  is  essential  to  the  commission  of 

(^Spalding  v.  Preston,  21  Vt.  12,  {«)Cunningliam  v.  State,  49  Miss. 

paxaiiii.  701. 

(//()Peop]e   V.    Lawton,    56   Earb.  (o)Pcople  v.  Murray,  14  Cal  160. 

i;U,  and  cases  and  authorities  there  (p)Lovett  0.  State,  19  Tex.  177. 
citL-d. 


CRIMES.  313 

a  crime;  so  that  where  this  is  wanting,  an  act  completely 
within  the  words  of  a  prohibitory  statute  is  not  punishable 
as  criminal ;  and  an  act,  therefore,  must  come  not  only 
within  the  words  of  a  statute  to  render  it  criminal,  but  witliin 
the  spirit  and  meaning  thereof ;  so  that  criminal  statutes  are 
not  to  be  construed  literally  and  technically, (^) 

An  intent  is  inferable  from  circumstances.  Where  an 
accused  commits  an  act  in  itself  unlawful,  he  is  held  bound 
to  know  the  law,  and  his  criminal  intent  is  held  to  be  a  pre- 
sumption of  law ;  and  this  is  declared  to  be  a  sound  and  sal- 
utary principle,  notwithstanding  it  may  work  hardship  in 
particular  cases.  And  it  is  no  excuse  that  a  wrong-doer  was 
misled  by  bad  advice  of  a  magistrate  or  counsel.  State  v. 
Ooodmon,  65  Me.  33;  Cutler  v.  State,  36  N.  J.  125;  U.  S.  v. 
Anthony,  11  Blatchf.  200;  U.  S.  v.  Taintor,  Id.  374;  Black  v. 
Ward,  27  Mich.  191;  Commonwealth  v.  Elicell,  2  Met.  190; 
■Commoincealth  v.  Farren,  9  Allen,  489;  Commonwealth  v. 
Goodman,  97  Mass.  117;  Commonwealth  v.  Eminons,  98  Mass. 
6.  But  Missouri  vigorously  protests,  and  claims  that,  as  a 
criminal  intent  is  an  essential  element  of  crime,  it  is  absurd 
and  meaningless  to  declare  that  when  a  crime  is  committed 
the  law  presumes  the  intent,  in  a  case  of  murder,  even. 
State  V.  Painter,  67  Mo.  84.  But  where  a  statute  speci- 
fies an  act  with  an  intent,  the  intent  must  be  clearly  proved 
without  any  aid  from  legal  presumptions  ;  and  no  intent  in 
law  differing  from  the  intent  in  fact  can  be  indulged. (r) 
Thus,  where  a  statute  j^rescribes  a  punishment  for  "wil- 
fully" removing  an  official  seal  from  property  sealed  up  by 
customs  officers,  and  one  does  intentionally  remove  the  seal, 
in  ignorance  of  its  character,  and  in  the  honest  discharge 
of  a  supposed  duty  in  caring  for  and  transporting  the  prop- 
erty, he  cannot,  in  the  sense  of  the  statute,  be  deemed  to 
have  acted  wilfully.  It  must  appear  not  only  that  the 
accused  intended  to  remove  the  seal,  but  that  he  did  so 
knowing  its  nature  and  character;  for  while,  on  the  one 
hand,  the  maxim  is  vjnorantla  juris  non  excusat;  on  the  other 

(ry)State   v.  Gardner,  5   Kcv.  378,  (r)H(ilcrts  «.  People,  T,»  Mich. 415, 

and  authorities  cited.  and  cuhies. 


31-t  CHIMES, 

hand,  the  maxim  is  equally  well  established  that  ignoranfm 
J'acti  excusat.  And  in  a  case  of  the  kind  just  alluded  to,  Hall, 
Justice,  remarks:  "It  is  true  that  a  person  who  deliberately 
does  an  act  which  he  knows  to  be  unlawful  or  wrongful  ia 
generally  held  to  have  done  it  wilfully;  and  the  familiar  doc- 
trine that  a  person  is  conclusively  presumed  to  know  the  law 
of  the  country  of  his  domicile,  or  temporary  sojourn,  was 
pressed  upon  the  court  for  the  j^urpose  of  bringing  this  case 
within  the  principle  of  the  cases  in  which  this  doctrine  haa 
been  applied.  Without  considering  the  question  whether  the 
regulations  presented  by  the  secretary  of  the  treasury,  under 
an  act  of  congress,  are  to  be  considered  as  laws,  it  must  be 
observed  that,  in  all  cases  of  this  kind,  the  intention  of  the 
legislature  is  to  govern ;  and  that  when,  as  in  this  case,  the 
act  must  be  icllfidlij  done  to  make  it  criminal,  it  can  hardly 
be  supposed  that  the  legislature  intended  to  declare  an  act 
committed  without  any  iHegal  or  improper  motive,  and  under 
the  honest  belief  that  it  was  entirely  right  and  proper,  to  be 
a  felony,  punishable,  in  the  discretion  of  the  court,  by  a  large 
pecuniary  fine,  and  five  years'  imprisonment.  Indeed,  under 
such  proof  of  the  absence  of  all  criminal,  or  improper  intent 
or  feeling,  eminent  judges  have  directed  acquittals  in  casea 
where  the  punishment  authorized  was  much  less  severe. "(s) 

§  811,  As  to  the  effect  of  a  pardon  upon  the  jurisdiction 
of  a  criminal  court,  it  is  held  that  a  pardon  by  law  must  be 
judicially  noticed  by  the  court,  because  it  is  the  business  of  a 
court  to  judicially  notice  general  laws.  But  a  pardon  issued 
by  an  executive  is  regarded  as  a  private  deed  to  the  accused, 
and  will  avail  nothing  unless  accepted  by  the  accused  and 
presented  for  a  discharge  ;(^)  not  even  while  exceptions  are 
pending,  (i/) 

§  312.  Venue  is  as  important  a  consideration  in  criminal 
as  in  civil  jurisdiction.  By  the  operation  of  a  statute  there 
may  be,  however,  a  shifting  or  discretionary  venue.  As,  for 
example,  the  third  section  of  an  act  of  congress  of  March  2, 

(s) United  States  «.3  Kailroad  Cars,  (!;)United  States  v.  Wilson,  7  Pet» 

1  Abb   (U.  S.)  202,  and  cases  cited.      160. 

(tt)Commonwealtli  v.  Lockwood,  109  Mass.  323. 


CRIMES.  315 

1793,  provided  that  the  supreme  court,  or,  when  it  is  not  sit- 
ting, any  one  of  the  justices  thereof,  together  with  the  judge 
of  the  district  within  which  a  special  session  as  thereafter 
authorized  shoukl  be  holden,  might  direct  special  sessions  of 
the  circuit  courts  to  be  holden  for  the  trial  of  criminal  causes 
at  any  convenient  place  within  the  district  nearer  to  the  place 
where  the  offences  might  be  said  to  be  committed  than  the 
place  or  places  appointed  by  law  for  the  ordinary  sessions. 

§  313.  There  is,  to  be  sure,  nothing  peculiar  in  the  gen- 
eral principles  of  venue  in  criminal  jurisdiction.  They  are 
the  same  as  in  civil  causes,  and  need  not  to  be  specially 
noticed  here.  But  our  attention  will  be  directed  to  extra-ter- 
ritorial offences  and  continuing  offences  in  this  connection. 

It  is  a  well-settled  principle  that  a  crime  committed  in  one 
state  is  not  punishable  in  another  state,  where  there  is  an 
organized  government,  except  as  to  citizens  in  foreign  lands. 
So,  where  a  prisoner  was  found  guilty  in  North  Carolina,  in 
1799,  under  a  statute  passed  in  1784,  he  was,  on  appeal,  dis- 
charged because  of  the  unconstitutionality  of  the  statute,  the 
crime  having  been  committed  in  Virginia. (v)  The  words  of 
the  statute  were :  "Whereas,  there  is  reason  to  apprehend 
that  wicked  and  ill-disposed  persons  resident  in  the  neighbor- 
ing states  make  a  practice  of  counterfeiting  the  current  bills 
of  this  state,  and  by  themselves  or  emissaries  utter  or  vend 
the  same,  with  an  intention  to  defraud  the  citizens  of  this 
state,  be  it  enacted,  etc.,  that  all  such  persons  shall  be 
subject  to  the  same  mode  of  trial,  and  on  conviction  liable  to 
the  same  pains  and  penalties,  as  if  the  offence  had  been  com- 
mitted within  the  limits  of  this  state,  and  be  prosecuted  in 
the  superior  court  of  any  district  of  the  state." 

The  principles  herein  are  so  admirably  set  forth  in  a  New 
Jersey  case — wherein  a  mortal  blow  was  struck  in  one  state, 
(New  York,)  and  after  receiving  the  injury  the  wounded  man 
died  in  another  (New  Jersey) — that  I  cannot  forbear  tran- 
scribing a  part  of  the  opinion  therein  rendered : 

"Nothing  was  done  by  the  defendant  in  this  state.  When 
the  blow  was  given  both  parties  were  out  of  its  jurisdiction, 
(t;)State  v.  Knight,  1  Taylor,  (N.  C.)  65. 


316  CRIMES. 

and  within  the  jurisrliction  of  the  state  of  New  York.  The 
only  fact  connected  with  the  offence,  alleged  to  have  taken 
place  within  our  jurisdiction,  is  that,  after  the  injury,  the 
deceased  came  into  and  died  in  this  state.  This  is  not 
the  case  where  a  man  stands  on  the  New  York  side  of  the 
line,  and,  •shooting  across  the  border,  kills  one  in  New  Jersey. 
When  that  is  so,  the  blow  is,  in  fact,  struck  in  New  Jersey. 
It  is  the  defendant's  act  in  this  state.  The  passage  of  the 
ball  after  it  crosses  the  boundary,  and  its  actual  striking,  is 
the  continuous  act  of  the  defendant.  In  all  cases  the  crimi- 
nal act  is  the  impinging  of  the  weapon,  whatever  it  may  be, 
on  the  person  of  the  party  injured;  and  that  must  necessa- 
rily be  where  the  impingement  happens.  And  whether  the 
sword,  the  ball,  or  am'  other  missile,  passes  over  a  boundary, 
in  the  act  of  striking,  is  a  matter  of  no  consequence.  The 
act  is  where  it  strikes;  as  much  where  the  party  who  strikes 
stands  out  of  the  state,  as  where  he  stands  in  it. 

"Here,  no  act  is  done  in  this  state  by  the  defendant.  He 
sent  no  letter,  or  missile,  or  message,  that  operated  as  an  act 
within  this  state.  The  coming  of  the  party  injured  into  this 
state,  afterwards,  was  his  own  voluntary  act,  and,  in  no  way, 
the  act  of  the  defendant.  If  thv  defendant  is  liable  here,  at 
all,  it  must  be  solely  because  the  deceased  came  and  died 
here  after  he  was  injured.  Can  that,  in  the  nature  of  things, 
make  the  defendant  guilty  of  murder  or  manslaughter  here? 
If  it  can,  then,  for  a  year  after  an  injury  is  inflicted,  murder, 
as  to  its  jurisdiction,  is  ambulatorv.  at  the  option  of  the  party 
injured,  and  becomes  punishable,  as  such,  wherever  he  may 
see  fit  to  die.  It  may  be  manslaughter,  in  its  various  degrees, 
in  one  place ;  murder,  in  its  various  degrees,  in  another. 
Its  punishment  may  be  fine  in  one  country;  imprisonment, 
whipping,  beheading,  strangling,  quartering,  hanging  or  tor- 
ture in  another ;  and  all  for  no  act  done  b}^  the  defend- 
ant in  any  of  these  jurisdictions,  but  only  because  the  party 
injured  found  it  convenient  to  travel. 

"This  is  not  like  the  case  of  stolen  goods  carried  from  one 
state  to  another ;  or  of  leaving  the  state  for  any  purpose 
whatever,  like  that  for  fighting  a  duel ;  or  of  sending  a  letter, 


CRIMES.  31 T 

or  messenger,  or  message,  for  any  purpose,  into  another  state  ; 
for  in  all  these  cases  the  cognizance  is  taken  of  an  act  done 
within  the  jurisdiction. 

"If  the  acts  charged  in  this  indictment  be  criminal  in  New 
Jersey  it  must  be  eitlier  by  force  of  some  statute  or  upon  gen- 
eral prhiciples.  There  is  no  statute,  unless  it  be  the  act  to 
be  found  in  Nix.  Dig.  184,  §  3.  But  this  evidently  relates  to 
murder  only,  and  not  to  manslaughter.  But  I  cannot  make 
m3'self  believe  that  the  legislature,  in  that  act,  intended  to 
embrace  cases  where  the  injury  was  inflicted  within  a  foreign 
jurisdiction,  without  any  act  done  by  the  defendant  within 
our  own.  Such  an  indictment,  upon  general  principles, 
would  necessarily  l)e  void.  It  would  give  the  courts  of  this 
state  jurisdiction  over  all  the  subjects  of  all  the  governments 
of  the  earth,  with  power  to  try  and  punish  them,  if  they  could, 
by  force  or  fraud,  get  possession  of  their  persons,  in  ail  cases 
where  personal  injuries  are  followed  by  death.  An  act,  to  be 
criminal,  must  be  alleged  to  be  an  offence  against  the  sover- 
eignty of  the  government.  Tiiis  is  of  the  very  essence  of 
crime  punishable  by  human  law.  How  can  an  act  done  in 
one  jurisdiction  be  an  offence  against  the  sovereignty  of 
another'?  All  the  cases  turn  uf)on  the  question  where  the 
act  was  done.  The  person  who  does  it  may,  when  he  does 
it,  be  within  or  without  the  jurisdiction — as  by  shooting  or 
sending  a  letter  across  the  border — but  the  act  is  not  the  less 
done  within  the  jurisdiction  because  the  person  who  does  it 
stands  without.  This  case  is  not  at  all  like  those  where  the 
defendant  is  tried  in  England  for  a  crime  committed  in  one 
of  the  dependencies  of  the  I]ritisli  empire.  There  the  act  is 
done,  and  the  crime  is  in  fact  committed,  against  the  sover- 
eignty of  the  British  crown,  and  only  the  place  of  trial  is 
changed.* 

"If  our  government  takes  jurisdiction  of  this  case  it  must 

*Thi.s  illustration  of  tlie  leaninfl  out  pioinincntl}-  as  one  of  tlie  un- 

judge  would  hardly  seem  apposite,  Ijcarable   grievances    upon    wliich 

as  the  legality  of  this  mode  of  trial  our  Dceiaration  of  Independeucc  is 

-will    not    readily   lie  admitted    by  based. 
Americans,  inasmuch   as  it  stands 


318  CRIMES. 

be.  not  l)y  virtue  of  any  statute,  but  because  it  assumes  gen- 
eral power  to  punish  acts  mala  in  se  wherever  perpetrated  in 
the  world.  The  act  of  the  party  injured  can  give  no  addi- 
tional jurisdiction. 

"Such  crimes  may  be  committed  on  the  high  seas;  in  lands 
-where  there  are  or  are  not  regular  governments  established. 
When  done  upon  the  high  seas,  thej^  may  be  either  upon  our 
vessels,  or  upon  vessels  belonging  to  otlier  governments. 
When  done  upon  our  vessels,  in  whatever  solitary  corner  of 
the  ocean,  from  the  necessity  of  the  case,  and  by  universal 
acceptance,  the  vessel  and  all  it  contains  are  still  within  our 
jurisdiction;  and  when  the  vessel  comes  to  port  the  criminal 
is  still  tried  for  an  act  done  within  our  jurisdiction.  But  we 
have  never  treated  acts  done  upon  the  vessels  of  other  govern- 
ments as  within  our  jurisdiction,  nor  has  such  ever  been  done 
by  any  civilized  government. 

"Where  an  act  malum,  in  se  is  done  in  solitudes,  upon  land 
where  there  has  not  yet  been  formally  extended  any  supreme 
human  power,  it  may  be  that  any  regular  government  may* 
feel,  as  it  were,  a  divine  commission  to  try  and  j)unish.  It 
may,  as  in  cases  of  crime  committed  in  the  solitudes  of  the 
ocean,  upon  and  by  vessels  belonging  to  no  government,  pro  hac 
vice  arrogate  to  itself  the  prerogative  of  omnipotence,  and 
hang  the  pirate  of  the  land  as  well  as  of  the  water.  Fur- 
ther than  this,  it  could  not  have  been  intended  that  our  stat- 
ute should  apply.  But  here  the  act  was  done  in  the  state  of 
New  York,  a  regularly  organized  and  acknowledged  supreme 
government.  The  act  was  a  crime  against  its  sovereignty. 
That  was  supreme  within  its  territorial  limits,  and  in  its  very 
nature,  and,  in  fact,  is  exclusive.  There  cannot  be  two  sov- 
ereignties supreme  over  the  same  place,  at  the  same  time, 
over  the  same  subject-matter.  The  existence  of  theirs  is 
exclusive  of  ours.  We  may  exercise  acts  of  sovereignty  over 
the  wastes  of  ocean,  or  of  land,  but  we  must  necessarily  stop 
at  the  boundary  of  another.  The  allegation  of  an  act  done  in 
another  sovereignty  to  be  a  violation  of  our  own  is  simply 
alleging  an  impossibility,  and  all  laws  to  punish  such  acts  are 
necessarily  void. 


CEIMES.  319 

"It  is  said  that,  if  we  do  not  take  jurisdiction,  the  defend- 
ant will  go  unpunished,  inasmuch  as,  the  party  injured  not 
dying  in  New  York,  he  could  not  be  guilty  of  murder  there. 
But  New  York  may  provide  by  law  for  such  cases,  and  if  she 
•does  not  it  is  her  fault  and  not  ours.  The  act  done  is 
against  her  sovereignty,  and  if  she  does  not  choose  to 
avenge  it,  it  is  not  for  us  to  step  in  and  do  it  for  her. "(?(') 

It  is  a  necessary  corollar^^  of  these  principles  that  every 
statute  is  to  be  presumed  to  be  enacted,  and  is  to  be  inter- 
preted, with  reference  to  the  local  jurisdiction  of  the  state 
whose  legislation  made  it.  (a;) 

The  doctrine,  however,  held  by  the  supreme  court  of  New 
Jersey,  though  I  think  it  is  the  general  and  more  reasonable 
•doctrine,  that  where  a  mortal  blow  is  given  in  one  jurisdic- 
tion, and  the  person  dies  of  the  injury  in  another,  the  former 
alone  has  cognizance  of  the  crime,  is  vigorously  denied  and 
combated  by  the  courts  of  Massachusetts  and  Michigan.  In- 
deed, in  Massachusetts,  the  statute  (Gen.  St.  c.  171,  §  19) 
provides  that  "if  a  mortal  wound  is  given,  or  other  violence 
or  injury  inflicted,  or  poison  is  administered,  on  the  high  seas 
or  on  land,  either  within  or  without  the  limits  of  this  state, 
by  means  whereof  death  ensues  in  any  county  thereof,  such 
offence  may  be  prosecuted  and  punished  in  the  county  where 
the  death  happens." 

The  court  declared  that  "this  statute  is  founded  upon  the 
general  power  of  the  legislature,  except  so  far  as  restrained 
by  the  constitutions  of  the  commonwealth  and  of  the  United 
States,  to  declare  any  wilful  or  negligent  act  which  causes  an 
injury  to  persons  or  property  within  its  territory  to  be  a 
crime,  and  to  provide  for  the  punishment  of  the  offender  upon 
being  apprehended  within  its  jurisdiction. "(?/)  This  goes  on 
the  supposition  (1)  that  the  injury  was  caused  to  person  or 
property  within  the  territory,  which  is  certainly  not  the 
case  when  the  causing  all  occurred  beyond  the  territory;  and 
(2)  that  the  death  was  a  continuation  of  the  crime — which 

(w)State  V.  Carter,  3  Dutch.  500.  (y)Commonwealth  v.  Macloon.lOl 

(a;) People  »;. Merrill,  2  Park,  Criin.      Mass.  5. 
R.  (N.  Y.)590. 


320  ciaMES. 

cannot  be,  inasmuch  as  the  will  of  the  offender  is  not  con- 
nected with  it  as  to  the  venue  of  the  death,  for  the  exertion  of 
will  was  exhausted  in  the  act,  and  the  act  was  completed  with- 
out the  jurisdiction.  Nothing  more  was  to  be  done ;  the  act 
was  fully  done.  And  if  intention  defines  crime  itself,  it 
certainly  may  define  the  continuance.  Hereafter  we  shall 
have  occasion  to  speak  of  continuing  crimes  in  different 
jurisdictions,  and  I  think  they  will  be  found  very  different,  aa 
embracing  a  continuous  acting  and  intention,  which  seems  ta 
me  the  true  distinction,  instead  of  the  mere  passive  conse- 
quences, without  action  or  intention. 

In  Michigan  a  divided  court  decided  that  where  a  shooting 
occurred  in  Canada,  and  the  death  in  that  state,  the  offender 
was  punishable  in  that  state.  The  majoritj' say :  "We  think 
it  clearly  wdthin  the  scope  of  the  legislative  power.  The  ex- 
pediency or  policy  of  tlie  statute  has  nothing  to  do  with  its 
constitutionality;  and  if  it  was  a  legitimate  subject  of  inquiry 
and  consideration,  in  determining  the  constitutional  question, 
we  should  not  hesitate  in  the  present  instance  to  declare  in 
its  favor;  for  the  crime,  though  commenced  in  Canada,  was 
consummated  in  Michigan.  The  shooting  itself,  and  the 
wound  which  was  its  immediate  consequence,  did  not  consti- 
tute the  offence  for  which  the  prisoner  is  convicted.  Had 
death  not  ensued  he  would  have  lieen  guilt}^  of  an  assault  and 
battery,  not  murder,  and  would  have  been  criminally  account- 
able to  the  laws  of  Canada  only.  But  the  consequences  of 
the  shooting  were  not  confined  to  Canada.  They  followed 
Jones  into  Michigan,  where  they  continued  to  operate  until 
the  crime  was  consummated  in  his  death.  If  such  a  killing 
did  not  by  the  common  law^  constitute  murder  in  Michigan, 
we  think  it  the  clear  intent  of  the  statute  to  make  it  such,  to 
the  same  extent  as  if  the  wounding  and  the  death  had  both 
occurred  in  the  state. "(3') 

Now,  with  all  due  deference  to  the  learned  court,  may  we 
not  say  that  plainly  this  decision  rests  the  jurisdiction,  not 
on  the  act  and  the  immediate  consequence  as  conferring  it,  but 
on  the  remote  consequences,  which  are  proper,  of  course,  in 

(2)Tyler  v.  People,  8  Mich.  333. 


CEIMES,  321 

(Jetermining  the  nature  of  the  blow,  whether  mortal  or  not, 
hut  not  in  conferring  Jurisdiction.  Again,  the  court  acknowl- 
edge that  if  death  had  not  ensued,  jurisdiction  could  only 
have  been  maintained  in  Canada.  Yet,  in  such  a  case,  tlie 
remote  consequences,  also,  might  be  developed  on  removal  to 
another  jurisdiction,  as  permanent  ill-health,  etc.  And  these 
might  properly  be  considered,  too,  so  far  as  they  were  devel- 
oped before  trial,  and  enter  into  the  measure  of  punishment. 
But  would  it  be  competent  for.  a  legislature  to  confer  jurisdic- 
tion of  the  case  upon  the  local  courts,  by  reason  of  the  remote  or 
secondary  consequences  following  after  ?  It  does  seem  to  me 
that  unless  the  act  is  continuous,  jurisdiction  must,  of  neces- 
sity, be  confined  to  the  place  where  the  causal  act  was  per- 
formed and  fully  completed,  which  produced  the  subsequent 
development  of  consequences  tending  to  define  the  act  itself, 
indeed,  but,  in  no  just  sense,  constituting  a  part  of  it. 

As  to  a  crime  committed  in  one  county,  the  development 
of  which  occurs  in  another,  as  the  whole  is  within  one  general 
jurisdiction,  it  would,  undoubtedly,  be  competent  to  a  legisla- 
ture to  allow  a  trial  in  either.  Yet,  at  common  law,  where 
an  offence  was  commenced  in  one  county,  and  consummated 
in  another,  it  has  been  held  it  could  not  be  tried  in  either; 
and  it  has  been  even  doubted  whether,  if  a  mortal  blow  was 
given  in  one  county,  and  the  party  died  in  another,  the 
offender  could  be  punished  in  either. (a)  The  venue  was, 
doubtless,  as  in  the  case  of  different  sovereignties,  in  the 
place  where  the  act  was  done. 

And  an  accessory  before  the  fact  can  only  be  tried  in  the 
coimty  where  the  intelligent  agent  is  procured  to  commit  the 
principal  act,  on  the  ground  that  there  his  crime  is  com- 
pleted ;(/>)  so  held  in  New  Hampshire.  But  the  doctrine  is 
justly  repudiated  in  Connecticut, (c)  and  I  doul)t  whether  it 
is  the  general  rule.  And  assuredly  it  is  not  the  rule  where 
the  statute  abolishes  the  distinction  between  principal  and 
accessory,  and  makes  all  participants  in  felony  principals. 

§  314.  There  is  an  apj^arent  but  not  a   real  exception  to 

(ajState  v.  Moore,  6  Fost.  (N.  H.)  (A) I  hid,  4",'). 

451.  (tjStute  V.  Grady,  34  Conn.  1.31. 

V.l— 21 


322  CRIMES. 

this  rule  in  the  matter  of  illegal  voting,  done  by  those  who 
by  special  law  are  allowed  to  vote  beyond  the  limits  of  the 
state.  I  say  not  real,  because  the  act  has  a  direct  bearing 
upon  the  affairs  of  the  state;  indeed,  has  its  immediate  effect 
in  the  state,  and  there  only ;  and  so  the  matter  falls  within  the 
operation  of  the  general  principle.  In  regard  to  statutes 
allowing  such  voting  (in  1862)  among  the  soldiers,  the  court  of 
Wisconsin  said:  "This  class  of  legislation  has  been  univer- 
sally recognized  as  valid,  for  the  reason  that,  although  it  au- 
thorizes acts  to  be  done  outside  of  the  country  where  it  is 
enacted,  and  specifies  in  what  manner  they  may  be  done,  still 
the  acts  themselves  relate  to  the  internal  affairs  of  the  state 
over  which  it  has  acknowledged  jurisdiction,  and  has  no  tend- 
ency to  interfere  with  the  sovereignty  of  other  states  in  which 
they  may  be  performed.  The  act  authorized  by  the  law  in 
question  seems  to  be  jDurely  of  this  character.  It  is  the  ex- 
pression of  the  will  of  an  elector  of  this  state  in  regard  to 
an  office  to  be  held  and  exercised  here.  It  is  an  act  that 
relates  as  entirely  to  the  internal  concerns  of  this  state,  and  is 
as  free  from  all  tendency  to  interfere  with  the  sovereignty  or 
jurisdiction  of  any  other  state  where  the  ballots  might  happen 
to  be  cast,  as  are  any  of  the  acts  authorized  by  the  legislature 
just  referred  to.  This  state  has  the  acknowledged  power  of 
providing  in  what  manner  title  to  the  soil  here  may  be  trans- 
ferred. It  provides  a  mode  by  which  it  may  be  done  in  other 
states,  and  if  so  done  the  transfer  is  valid.  It  has  equal 
authority  to  provide  the  mode  in  which  the  elector  shall  cast  his 
]>allot.  It  provides  that  he  may  do  it  in  another  state.  If  so 
done,  why  is  the  act  not  equally  valid  with  the  other?  I  can 
see  no  distinction  in  principle  between  them,  so  far  as  it 
relates  to  the  power  of  the  state  to  authorize  them  to  be  done 
outside  of  its  territorial  jurisdiction ;  or,  rather,  if  there  is  any 
distinction  it  is  in  favor  of  the  law  authorizing  the  ballot,  for 
that  is  a  matter  entirely  between  the  state  and  its  own  citi- 
zens. *******  It  may  not  only  pass  permis- 
sive laws  in  respect  to  them  when  beyond  its  limits,  but  also 
laws  which  are  binding  and  obligatory  upon  them  everywhere, 
and  for  the  violation  of  which  they  may  be  punished  when- 


CHIMES.  823 

ever  the  state  can  find  them  within  its  jurisdiction.  *  *  * 
*  *  *  It  seems  to  be  well  established  that  every  nation 
has  the  right  to  punish  its  own  citizens  for  the  violation  of 
its  laws,  wherever  committed.  This  right  is  based  upon  the 
duty  of  allegiance,  and  it  does  not  rest  upon  the  assump- 
tion that  one  state  can  extend  its  laws  into  another  so  as  to 
make  them  directly  operative  there,  or  impose  any  obligation 
on  such  other  state  to  observe  them,  or  give  any  effect  to  them, 
but  merely  that  they  may  be  personally  binding  upon  the 
citizen  of  the  state  which  enacts  them,  and  justify  his  punish- 
ment for  their  violation  by  such  state  when  he  returns  within 
its  limits.  *****  j  ^m  unable  to  say,  therefore, 
that  the  provisions  of  this  law  providing  for  the  punishment 
of  illegal  voting  under  it  might  not  be  enforced  against  the 
citizens  of  this  state  who  should  violate  it  abroad,  if  they 
should  afterwards  be  found  here."(d) 

§  315.  The  doctrine,  recognized  in  the  above  quotation, 
of  the  responsibility  of  citizens  for  acts  done  abroad,  a 
responsibility  resting  upon  their  allegiance,  is  quite  generally 
recognized  as  a  reasonable  safeguard.  Yet  it  is,  of  course, 
subject  to  the  qualification  that  the  laws  in  regard  to  such 
acts  can  only  be  enforced,  or  have  operation,  within  the 
jurisdiction  enacting  them,  and  not  within  the  foreign  juris- 
diction where  the  acts  were  committed,  any  further  than  to 
the  very  limited  extent  defined  by  the  comitate  gentinm.{e) 
The  principle  is  thus  stated :  "Although  the  laws  of  a  nation 
[or  state]  have  no  direct  binding  force,  or  effect,  except  uj)on 
persons  within  its  own  territories,  yet  every  nation  has  a 
right  to  bind  its  own  subjects,  by  its  own  laws,  in  every  other 
place, "(/)  subject  to  the  limitation  just  stated,  as  to  the  exe- 
cution of  those  laws. 

§  310.  This  matter  has  been  set  forth  very  clearly  by 
Christiancy,  J.,  in  a  separate  opinion,  given  in  a  Michigan 
case,  wherein  he  says:  "It  is  well  settled,  as  a  general  prin- 
ciple, that  the  laws  of  no  nation  have  any  extra-territorial 

(d)State  ex  rel.  v.  Main,  16  Wis.  (<^)Story's  Confl.  of  Laws,  ^  640, 

413-422,  passim.  22. 

(/)Ibid,  i  21 


321  CKIMES. 

force ;  that  criminal  laws,  especially,  cannot  operate  beyond 
the  territorial  limits  of  the  government  by  which  they  are 
enacted.  From  this  principle,  mainly,  but  not  entirely, 
results  another  general  princij^le,  that  to  give  any  govern- 
ment, or  its  judicial  tribunals,  the  right  to  punish  any  act, 
or  transaction,  as  a  crime,  the  act  must  have  been  committed, 
or  tiie  transaction  must  have  occurred,  within  its  territorial 
limits.  Hence,  by  the  common  law,  which,  in  this  respect, 
has  always  been  acted  upon  in  the  United  States,  criminal 
offences  are  considered  as  entirely  local.  Story  Confl.  Laws, 
§  620.  But  the  general  principle,  that  the  laws  of  a  country 
cannot  render  an  act  criminal  when  committed  beyond  its 
limits,  is  subject  to  some  qualifications,  or  exceptions.  Thus, 
every  sovereignty  has  the  right,  subject  to  certain  restric- 
tions, to  protect  itself  from,  and  to  punish  as  crimes,  certain 
acts  which  are  peculiarly  injurious  to  its  rights,  or  interests, 
or  those  of  its  citizens,  wJierever  conimitted — at  least,  if  com- 
mitted by  a  citizen  or  subject  of  such  sovereignty;  and,  unless 
calculated  to  injure  the  sovereignty,  or  its  citizens,  no  gov- 
ernment can  have  any  legitimate  right  to  punish  offences 
committed  within  or  without  its  limits.  Most  crimes  are 
brought  within  this  princij^le,  and  become  injurious  only  by 
reason  of  being  committed  within  such  limits.  In  general, 
they  have  this  effect  only  when  so  committed.  But  when 
committed  within  the  territory  they  must  always  have  this 
effect  to  a  greater  or  less  extent,  as  they  tend  to  endanger 
the  peace  and  good  order  of  the  community,  or  the  prop- 
erty, interests,  or  lives  of  its  citizens,  to  obstruct  the  laws, 
or  to  bring  them  into  contempt,  if  not  enforced.  Hence, 
also,  it  becomes  the  duty  of  every  government  to  repress 
crimes  within  its  own  dominions.  But,  though  crimes  in 
general  thus  become  injurious  to  the  sovereignty  only  when 
committed  within  its  territories,  there  are  exceptional  cases, 
standing  upon  peculiar  grounds,  as  already  intimated.  Thus 
(without  attempting  to  enumerate  all)  the  citizen  may  com- 
mit treason  by  acts  or  combinations  abroad;  the  commerce 
of  a  nation  may  be  injured,  or  its  pacific  relations  with  other 
governments  endangered,  by  the  criminal  conduct  of  the  crews 


I 


CRIMES.  325 

or  passengers  of  its  ships  in  foreign  ports.  In  such  cases, 
the  offender  may  be  punished  by  the  government  of  which  he 
is  a  citizen,  with  this  qualification,  that  he  be  afterwards 
found  within  the  territory  or  jurisdiction  of  the  latter,  or  be 
brought  there  without  a  violation  of  the  rights  of  the  sover- 
eignty within  which  the  act  was  committed;  for  he  cannot  be 
arrested  there  without  the  consent  of  the  latter.  "(^) 

This  doctrine  is  assented  to,  I  believe,  by  all  civilized 
nations,  and  thus  may  be  said  to  have  a  permanent  place 
in  international  law. 

§  317.  Upon  the  general  principle  that  acts  committed 
within  the  jurisdiction  are  subject  to  the  jurisdiction,  one 
who  perpetrates  an  offence  within  a  state,  by  means  of  an 
agent,  or  letter,  or  other  means,  is  punishable,  though  he 
himself  did  not  enter  the  jurisdiction  to  perform  the  act. 
Sometimes,  however,  where  the  distinction  prevails  of  princi- 
pal and  accessory — as  in  felonies — one  procuring  an  act  to 
be  done  elsewhere  is  considered  an  accessory  before  the  fact, 
and  his  crime  is  held  to  be  completed  where  his  plan  was  set 
on  foot,  so  that  he  is  only  responsible  within  that  jurisdic- 
tion. But  as,  in  misdemeanors,  there  are  no  accessories,  (and 
also  where  a  statute  abolishes  the  distinction  in  felonies,)  the 
rule  is  different  therein.  Also,  where  the  distinction  prevails, 
it  is  usually  held  that  one  is  a  principal  who  employs  an  in- 
nocent agent — as,  for  example,  one  to  administer  poison  who 
does  not  know  that  the  drug  is  poisonous;  but  an  accessory 
only,  where  he  employs  an  intelligent  agent,  as  actor,  who  is 
aware  of  the  nature  of  the  transaction;  and  then  the  latter 
is  the  principal. 

Thus  the  matter  is  stated  by  the  New  Jersey  court :  "The 
rule,  therefore,  appears  to  be  firmly  established,  and  upon 
very  satisfactory  grounds,  that  where  the  crime  is  committed 
by  a  person  absent  from  the  country  in  which  the  act  is  done, 
through  the  means  of  a  merely  material  agency,  or  by  a  sen- 
tient agent,  who  is  innocent,  in  such  cases  the  offender  is 
punishable  where  the  act  is  done.  The  law  implies  a  con- 
structive presence  from  the  necessity  of  the  case ;  otherwise 
((/)People  v.  Tyler,  7  Midi.  221. 


326  CRIMES. 

the  anomaly  wonltl  exist  of  a  crime,  but  no  responsible  crimi- 
nal. *******  If,  then,  the  accessory,  by  the 
common  law,  was  answerable  only  in  the  county  in  which 
he  enticed  the  principal,  and  that,  too,  when  the  criminal  act 
was  consummated  in  the  same  county,  it  would  seem  to  fol- 
low, necessarily,  in  the  absence  of  all  statutory  provision, 
that  he  is  wholly  dispunishable  when  the  enticement  to  the 
commission  of  the  offence  lias  taken  place  out  of  the  state  in 
which  the  felony  has  been  perpetrated.  Under  such  a  con- 
dition of  affairs  it  is  not  eas}'  to  see  how  the  accessory  has 
brought  himself  within  the  reach  of  the  laws  of  the  offended 
state.  His  off'ence  consists  in  the  enticement  to  commit  the 
crime;  and  that  enticement,  and  all  parts  of  it,  took  place  in 
a  foreign  jurisdiction.  As  the  instrumentality  employed  was 
a  conscious,  guilty  agent,  with  free  will  to  act,  or  to  refrain 
from  acting,  there  is  no  room  for  the  doctrine  of  a  construct- 
ive presence  in  the  procurer. "(/<) 

Thus,  in  the  misdemeanor  of  defrauding  by  false  pretences* 
it  is  held  that  the  offence  is  committed  where  the  false  pre- 
tences are  successfully  used,  and  thus  take  effect,  even  where 
the  fraud  originated  and  was  continued  in  another  state. (i) 
If  one  fires  a  gun  across  a  boundary,  and  kills  a  man  in  another 
state,  the  crime  is  committed  in  the  latter,  where  the  shot  took 
effect. (./)  Where  a  child,  an  idiot,  or  a  madman,  is  induced 
to  commit  a  felonious  act,  the  principal  is  punishable  for  the 
act,  although  not  present  at  its  commission.  And  so,  if  one 
procures  an  innocent  boy  to  pass  a  counterfeit  note.(/v)  And 
the  principle  on  which  this  is  based  is  the  maxim  of  the  com- 
mon law  itself.  Qui  facit  per  aVtum,  facit  per  se,  which  has 
been  declared  by  the  Connecticut  court  to  be  of  "universal 
application,  both  in  criminal  and  civil  cases;"  so  that  "he 
who  does  an  act  in  this  state,  by  his  agent,  is  considered  as 
if  he  had  done  it  in  his  own  proper  person."  (Z)     And  so  the 

(A)State  V.  Wyckott",  2  Vroom,  (N.  ( j)United  States  v.  Davis,  2  Siimn. 

J.)  68,  69,  passim..  485. 

(«)People  V.  Adams,  3  Deuio,  (N.  (A;)  Common  wealth     v.     Hill,     11 

T.)  WO.  Mass.  136. 

{?)Baihamstead  v.  Parsons,  3  Conn.*  8. 


CRIMES.  327 

supreme  court  of  New  York  say :  "True,  the  defendant  was 
not  personally  within  this  state,  but  he  was  here  in  purpose 
and  design,  and  acted  by  his  authorized  agents.  Qmfacit  per 
alium,  facit  per  se.  The  agents  employed  were  innocent,  and 
he  alone  was  guilty.  An  offence  was  thus  committed,  and 
there  must  have  been  a  guilty  offender;  for  it  would  be  some- 
what worse  than  absurd  to  hold  that  any  act  would  be  a  crime 
if  no  one  was  criminal.  Here  the  crime  was  perpetrated 
within  this  state,  and  over  that  our  courts  have  an  undoubted 
jurisdiction.  This  necessarily  gives  them  jurisdiction  over 
the  criminal.     Crimen  trahit  personam. 

"For  all  civil  purposes  a  person  out  of  this  state  may  act 
by  procuration  within  its  limits,  and  thus,  although  absent 
at  the  time,  he  may  become  subject  to  the  state  law.  Eights 
may  thus  be  acquired  by  the  absent  party,  as  he  may  also 
become  civilly  liable  under  the  laws  of  this  state  for  what  is 
done  here  by  his  authorization  and  procurement.  The  indi- 
vidual remed}',  in  such  case,  is  perfect ;  and  if  the  criminal 
law  of  the  state  is  thus  violated,  why  should  not  the  absent 
offender  be  responsible  criminally  when  afterwards  found 
within  the  state?  In  authorizing  another  to  act  for  him,  the 
principal  so  far  voluntarily  submits  himself  to  the  law  of  the 
place  where  the  authorized  act  is  to  be  performed.  This  is 
confessedly  so,  for  all  civil  purposes.  If  an  act  thus  author- 
ized results  in  wrong  to  an  individual,  his  right  to  redress 
against  the  principal,  though  absent,  is  undoubted.  As  to 
the  person  injured,  the  local  law  was  violated  by  the  absent 
wrong-doer ;  and  if  the  act  done  was  also  a  violation  of  the 
local  criminal  law,  is  the  author  and  procurer  of  the  deed 
guiltless?  Does  the  law  hold  him  to  have  been  within  its 
jurisdiction  so  far  as  respects  the  civil  remedy,  but  not  for 
the  purpose  of  punishment,  "(w) 

Where  the  statute  makes  the  crime  of  the  accessory  before 
the  fact  a  substantive  felony, — thus,  in  effect,  making  him  a 
principal, — he  can  be  punished  where  the  principal  act  con- 
stituting the  crime  was  committed,  even  if  the  crime  is  made 
the  subject  of  separate  prosecution  and  punishment  instead 
(m)People  v.  Adams,  3Doiiio,  210. 


328  CRIMES. 

of  being  inclndetl  in  an  indictment  with  the  principal  offence ; 
this  provision  not  changing  the  definition,  the  facts  and  cir- 
cumstances, or  the  proof.  (/<) 

In  matters  of  libel,  the  crime  is  held  to  be  committed 
where  the  paper  containing  it  is  actually  received  and  circu- 
lated, (o)  And  this  is  on  the  general  principle  above  stated, 
the  act  being  performed  by  a  material  agency. (/^) 

§  ?>18.  According  to  Mr.  Wharton,  the  principle  involved 
in  the  case  of  People  v.  White,  1  Taylor,  (N.  C.)  65,  does  not 
always  apply  to  a  foreign  jurisdiction;  for  if  one  establishes 
a  manufactory  within  the  boundaries  of  Mexico,  for  example, 
to  forge  United  States  securities,  he  holds  that  he  may  be 
punished,  if  arrested,  in  the  United  States.  But  he  gives 
some  peculiar  grounds  for  this,  it  will  be  observed,  namely: 
"Because,  first,  in  countries  of  such  imperfect  civilization 
penal  justice  is  uncertain ;  second,  because  Mexico  holds  that 
we  have  jurisdiction,  and  that  therefore  she  will  not  exert  it; 
third,  becau-e,  in  cases  where,  in  such  countries,  the  local 
community  gains  greatly  by  the  fraud,  and  suffers  by  it  no 
loss,  the  chances  of  conviction  and  punishment  would  be  pe- 
culiarly slight;  and,  fourth,  because  all  that  the  offender  would 
have  to  do,  to  escape  justice  in  such  a  case,  would  be  to  walk 
over  the  boundary  line  into  the  United  States,  where,  on  this 
hypothesis,  he  would  go  free."  He  adds:  '"In  political 
offences  there  is  this  farther  consideration,  that  it  is  now  an 
accepted  doctrine  of  international  law  that  no  government 
will  punish  a  refugee  for  treason  against  his  sovereign,  and 
hence  a  government,  on  the  hypothesis  here  disputed,  would 
have  no  redress  for  offences  directed  abroad  by  refugees 
against  its  sovereignty,  even  though  the  offenders  were  its 
own  subjects,  and  should,  after  the  commission  of  the  offence, 
return  to  its  soil."(</) 

The  patent  objections  to  this  passage  are:    First,  as  to  the 

(n)Commonwealtli  «.  Smith,  11  and  cases  there  collected;  Common- 
Allen,  257.  wealth  v.  Gillespie,  7  S.  &  R.  (Pa.) 

(o)Comraonwealth  v.  Blanding,  3  477;  People  v.  Rathburn,  21  Wend. 

Pick.  3U4.  (N.  Y.)  509. 

(/;)0n    this   general   subject  see,  ((7)Wharton     on     Crim.    Law,    J 

also,  State  v.  Cbapin,  17  Ark.  561,  210. 


CRIMES.  329 

last  sentence,  it  is  equally  apiDlicable  to  all  crimes  as  v,'e\\  as 
political  ofrjnces,  and  we  have  considered  before  the  juris- 
diction exercised  over  offences  against  the  internal  order  of  a 
state  committed  by  subjects  abroad,  and  also  those  commit- 
ted within  the  jurisdiction  by  those  not  present  in  it;  sec- 
ond, while  the  mere  manufacturing  of  United  States  securi- 
ties, confined  to  Mexican  soil,  might  not  be  cognizable  in 
the  United  States,  the  act  of  uttering  and  passing  the  coun- 
terfeit money  within  the  United  States  would  certainly  be 
punishable  here;  and  this  uttering  would,  of  course,  be  the 
substantive  oft'ence,  since,  without  this,  the  mere  manufac- 
turing would  be  altogether  harmless ;  so  that  we  could  have 
jurisdiction  on  the  generally  acknowledged  principle,  without 
any  necessity  of  combating  a  visionary  "hypothesis."  It  is 
somewhat  similar  to  the  case  where  homicide  is  punishable 
by  administering  poison,  and  one  sends  the  poison  prepared, 
and  with  directions,  by  a  person  who  carries  it  into  another 
local  jurisdiction,  and  there  takes  it  according  to  directions, 
and  is  poisoned ;  the  administering  is  held  to  be  where  it  was 
taken,  and  there,  therefore,  is  the  venue  of  the  crime. (r  ) 

§  319.  In  Iowa  it  has  been  held  that  the  jurisdiction  in  a 
<5ase  of  abortion  belongs  to  the  county  where  the  medicine 
was  administered,  and  not  where  the  miscarriage  takes  place ; 
so  that  the  jjrovision  of  the  statute,  that  where  a  public  offence 
is  partly  committed  in  one  county  and  partly  in  another,  or 
where  the  acts  or  effects  constituting  the  offence  occur  in  differ- 
ent counties,  the  jurisdiction  may  be  exercised  in  either,  does 
not  apply,  because  the  administering  the  medicine  with  the  in- 
tent charged  makes  the  offence  complete. (s)  The  principle  of 
this  is  precisely  that  which  has  been  already  explained,  as  to 
a  case  where  a  mortal  blow  is  struck  in  one  state  and  the 
death  occurs  in  another. 

§  320.  This  leads  us  to  notice  another  class  of  offences, 
made  up  of  distinct  essential  constituent  acts,  performed  in 
different  jurisdictions,  whether  of  counties,  states  or  nations. 
Mr.  Wharton  states  the  matter  concisely  thus:  "Since,  how- 
ever, a  crime  may  be  organized  in  one  country,  advanced  in 

{r)Robbins  v.  Slate,  8  O.  St.  131.  (s)State  v.  IloUcnbcck,  36  la.  112. 


330  CRIMES. 

fi  second,  and  executed  in  a  third,  it  is  necessary  to  conceive 
of  the  crime  in  question  as  broken  up  into  several  sections, 
committed  in  distinct  jurisdictions,  and  severally  cognizable 
in  each.  That  such  is  the  case  is  the  opinion  of  several 
eminent  jurists,  and  such  would,  no  doubt,  (e.  g.,  under  indict- 
ments for  treason  or  conspiracy,  where  every  overt  act  would 
give  the  local  court  jurisdiction,)  under  similar  circumstances, 
be  the  practice  of  the  English  common  law.  And  the  same 
reasoning  applies  to  all  offences  which  are  carried  on  in  two 
or  more  jurisdictions.  At  the  same  time,  it  must  be  kept  in 
mind  that  an  attempt  to  commit,  in  a  foreign  state,  an  act 
lawful  in  such  state,  though  unlawful  in  the  place  of  the 
attempt,  will  not  be  punishable  in  the  latter  state.  It  has 
been  held  that,  in  such  case,  in  adjusting  the  sentence,  the 
grade  of  the  consummated  offence  will  be  taken  into  consid- 
eration, and  a  punishment  adequate  to  the  whole  imposed, 
allowing  for  what  may  have  been  inflicted  by  other  tribunals. 
But  on  this  point  there  is  some  conflict.  Foreign  jurists 
have,  and  not  without  reason,  held  that  when  an  illegal  trans- 
action has  been  carried  on  in  several  territories,  each  terri- 
tory can  only  punish  for  that  segment  of  the  crime  committed 
within  its  own  bounds.  In  the  United  States  this  is  a  ques- 
tion of  growing  importance.  In  England,  by  statute,  wher- 
ever a  felony  or  misdemeanor  is  committed  in  one  county,  and 
completed  in  another,  the  venue  may  be  laid  in  either  county ; 
and  offences  committed  when  traveling  may  be  laid  in  any 
county  through  which  the  passenger,  carriage  or  vessel  passes. 
Embezzlement  or  larceny  can,  therefore,  in  England,  be  tried 
in  any  county  into  which  the  spoils  of  the  offence  are  brought. 
And  similar  statutes  exist  in  most  of  the  United  States. 
When  goods  are  stolen  in  one  country,  and  brought  by  the  thief 
into  another  country,  the  latter  country,  by  the  English  com- 
mon law,  has  no  jurisdiction.  In  the  United  States,  however* 
it  has  been  held  to  be  within  the  constitutional  province  of  each 
state  to  pass  statutes  giving  the  country  of  arrest,  in  which 
the  goods  are  so  brought,  jurisdiction.  And,  as  between  the 
several  United  States,  this  jurisdiction  has  been,  in  Massachu- 
setts, Connecticut,  North  Carolina,  Maryland,  Kentucky,  Mis- 


CRIMES.  331 

sissippi,  Missouri,  Iowa,  Oregon  and  Ohio,  ruled  to  exist  at 
common  law.  In  other  states  such  jurisdiction  was  held  not 
to  exist  without  a  statute ;  and  yet  the  statute  conferring  the 
jurisdiction  has  been  held  to  be  constitutional.  In  Vermont 
it  has  even  been  held  that  when  the  goods  are  stolen  in  Canada, 
and  brought  into  Vermont,  the  Vermont  courts  have  jurisdic- 
tion, "(f) 

In  continuing  crimes,  as  where  property  is  stolen  in  one 
state  and  asported  into  another,  it  is  no  plea  that  the  offender 
is  liable  to  punishment  in  the  state  where  the  goods  were 
taken,  on  an  indictment  in  the  state  where  the  property  was 
carried  with  a  felonous  intent.  And  the  supreme  court  of 
Kentucky  thereon  quotes  approvingly  the  language  of  Judge 
Sedgwick,  in  Massachusetts,  uttered  with  reference  to  the 
argument  that  the  offender,  in  such  case,  would  then  be  liable 
to  punishment  in  two  states :  "And  wherefore  should  he  not  ? 
For  myself,  I  feel  no  such  tenderness  for  thieves  as  to  desire 
that  they  should  not  be  punished  whenever  guilty.  If  they 
offend  against  the  laws  of  two  states,  I  am  willing  they  should 
be  punished  in  both."(«,)  And  in  Mississippi  the  matter  is 
correspondingly  placed  upon  the  ground  that  every  moment's 
continuance  of  the  original  trespass  amounts  to  a  new  caption 
and  asportation,  which  is  certainly  carrying  the  principle  to 
its  extreme  limit.  And  it  is  so  placed  in  order  to  briiig  the 
case  within  the  general  rule  that  the  laws  of  the  state  can 
only  be  applied  to  crimes  committed  in  the  state,  (v) 

In  New  York  it  is  held  to  be  a  defence  that  the  prisoner 
was  convicted  or  acquitted  for  the  original  larceny,  but  the 
court  say,  per  Savage,  C.  J.:  "The  legislature  have,  indeed, 
been  more  tender  of  the  offender  than  in  my  judgment  was 
necessary,  by  permitting  him  to  plead  a  conviction  or  acquit- 
tal for  the  same  offence,  meaning  the  original  larceny,  "(w) 

As  to  counties  in  that  state,  it  has  been  held  that  in  cases 
of  misdemeanors,  where  the  offence  is  made  up  of  two  mace- 

(<)Wharton's  Crira.  Law,  ^§  210?/)-  (»)  Watson  v.  State,  36  Miss.  60S, 

210.C.  and  many  cases  cited. 

{ujFerrill    v.    Commonwealth,    1  (zo)People    v.    Burke,    11  Wend. 

Duv.  158.  131. 


332  CRIMES. 

rial  acts,  or  events,  done,  or  happening,  in  different  counties, 
the  venue  may  be  laid  in  either. (,c)  And  as  to  states,  it  is 
held  no  answer  to  an  indictment  that  the  prisoner  owes  alle- 
giance to  another  state  or  sovereignty.  (?/) 

In  Massachusetts  it  has  been  held  that  the  accessory  may 
be  sentenced  to  pay  treble  damages  to  the  owner  of  the  goods, 
just  as  the  principal  could  under  the  statute,  (i-)  But  the  mat- 
ter is  confined  to  asportation  from  other  states,  and  is  held 
not  to  apply  to  goods  stolen  in  a  foreign  territory,  (as  the 
British  provinces,)  under  the  jurisdiction  of  an  independent 
government,  between  which  and  the  state  there  is  no  other 
relation  than  that  effected  b}^  the  laws  of  nations,  (a)  And  in 
a  later  case,  Thomas,  J.,  very  elaboratel}^  and  vigorously  dis- 
sented from  the  doctrine  as  between  the  states  themselves. (fo) 

In  Iowa  "it  is  held  that  when  stolen  property'  is  brought 
into  the  state  the  crime  of  larceny  is  completed,  in  any 
county  into  which  the  property  is  brought  by  the  thief,  and 
he  may  be  indicted  in  any  such  county. "(c) 

In  Ohio  the  doctrine  is  established,  but  with  an  able  dis- 
sent in  one  case,  on  the  part  of  Bead,  J.,  who  sharply 
inquires:  "Upon  what  principle  can  it  be  held,  in  Ohio,  that 
a  person  found  in  the  possession  of  a  thing  stolen  in  a  sister 
state  should  be  construed  to  have  stolen  the  thing  in  Ohio? 
Not  upon  the  common-law  principle ;  for  the  common  law 
expressly  forbids  it.  Not  upon  a  statute  of  this  state;  for 
there  is  none.  Shall  it  be  upon  usage  ?  This  would  be  a 
novelty  in  a  state  where  no  man  can  be  punished  for  a  crime 
unless  the  offence  be  specifically  defined  by  a  statute  of  the 
state,  prescribing  the  exact  punishment.  Shall  it  be  from  the 
necessity  of  the  case,  lest  a  rogue  escape?  Necessity  confers 
no  criminal  jurisdiction,  and  is  the  well-known  plea  of 
tyrants. "((i)  But  does  not  necessity  confer  criminal  jurisdic- 
tion— as  in  the  case  of  pirates,  crimes  committed  abroad  on 

(.))People  V.  Rathl)urn,  21  "Wend.  (rO Commonwealth  v.    Uprichard, 

53G.  3  Gray,  43:i. 

(^)Adara3  v.  People,  1  Corns.  (N.  (i)Commonwealth    v.    Holder,    9 

T.)177.  Gray,  7. 

(j)C'ommonwealth  «.   Andrews,  2  (r)State  t'.  Bennett,  14  la.  47!). 

Mass.  29.  (d)Hamilton  «.  State.  11  Ohio,  439. 


CRIMES.  333 

the  high  seas,  and  crimes  committed  in  deserts  and  waste 
places,  without  government  ?  xind,  if  necessity  be  once 
admitted  to  be  a  principle  of  jurisdiction  at  all,  in  any  case, 
who  will  say  where  it  shall  stop  short  of  providing  every- 
thing necessary  to  prevent  a  complete  failure  of  justice,  and 
a  breaking  down  of  the  barriers  of  protection  to  person  and 
property  ? 

In  Missouri  "the  asportation  is  met  with  the  full  penalty 
of  larceny, (f)  and  even  if  it  be  by  a  bailee,  who  obtains  posses- 
sion under  pretence  of  hiring."(/) 

In  Pennsylvania  it  was  held,  in  1813,  that  one  who  car- 
ried goods  into  that  state,  which  he  had  stolen  in  another, 
could  only  be  treated  as  a  fugitive  from  justice. ((/) 

§  321.  Foreigners  committing  a  crime  in  time  of  peace, 
within  a  jurisdiction,  are  punishable  the  same  as  citizens. 
Nor  does  the  adoption  of  the  act  by  the  country  to  which  they 
belong  oust  the  jurisdiction  to  punish  the  individual.  The 
celebrated  McLeod  case,  which  so  imminently  threatened  war 
between  this  country  and  Great  Britain,  developed  this  mat- 
ter in  a  very  elaborate  decision  of  the  New  York  supreme 
court,  which  held,  in  regard  to  this  adoption  of  an  act  by  the 
government  to  which  the  offender  belonged,  the  following 
views,  supported  by  authority : 

"What  is  the  utmost  legal  effect  of  a  foreign  sovereign 
approving  of  a  crime  which  his  subject  has  committed  in  a 
neighboring  territory  ?  The  approval,  as  we  have  already  in 
part  seen,  can  take  nothing  from  the  criminality  of  the 
principal  offender.  Whatever  obligation  his  nation  may  be 
under  to  save  him  harmless,  this  can  be  done  only  on  the 
condition  that  he  confine  himself  within  her  territory.  Vat- 
tel,  book  2,  c.  6,  §  7-1.  Then,  by  refusing  to  make  satisfac- 
tion, to  punish  or  deliver  him  up  on  demand  from  the  injured 
country,  or  by  approving  the  offence,  the  nation,  says  Yattel, 
becomes  an  accomplice.  Id.  §  76.  Blackstone  says  an  ac- 
complice or  abettor.  4  Com.  68.  And  Rutherford,  still  more 
nearly  in  the  language  of  the  P^nglisli  law,  an  accessory  after 

(r)Hemm;ikcr  v>.  State,  12  Mo.  453.  (/ylSimmons  v.   Comnidinvcallh,  fj 

f.f)State  •«.  Williams,  :J3  Mo.  229.       Jiinn   (J  17. 


384  CRIMES. 

the  fact.  Book  2,  c.  9,  §  12.  No  book  holds  that  such  an 
act  merges  the  original  offence,  or  renders  it  imputable  to  the 
nation  alone.  The  only  exception  lies  in  the  case  of  crime 
committed  by  an  ambassador,  not  because  he  is  guiltless,  but 
by  reason  of  the  necessity  that  he  should  be  privileged,  and 
the  extra-territorial  character  which  the  law  of  nations  has 
therefore  attached  to  his  person.  Hence,  say  the  books,  he 
can  be  proceeded  against,  not  otherwise  than  by  a  complaint 
to  his  own  nation,  which  will  make  itself  a  party  to  his  crime 
if  it  refuse  either  to  pnnish  him  by  its  authority,  or  to  deliver 
him  up  to  be  punished  by  the  offended  nation.  Ruth,  book  2, 
c.  9,  §  20.  Independently  of  this  exception,  therefore,  Ruther- 
ford insists,  with  entire  accurac}-,  that  'as  far  as  we  concur 
in  what  another  man  does,  so  far  the  act  is  our  own;  and  the 
effects  of  it  are  chargeable  upon  us,  as  well  as  uj)on  him.' 
Ruth,  book  1,  c.  17,  §  6.  A  nation  is  but  a  moral  entity, 
and,  in  the  nature  of  things,  can  no  more  wipe  out  the  offence 
of  another,  by  adopting  it,  than  could  a  natural  person.  And 
the  learned  writer  just  cited  accordingly  treats  both  cases  as 
standing  on  the  same  principle.  Book  2,  c.  9.  §  12.  'Noth- 
ing is  more  usual,'  says  Puffendorf,  'than  that  every  partic- 
ular accomplice  in  a  crime  be  made  to  suffer  all  that  the  law 
inflicts.'  Book  3,  c.  1,  §  5.  Vattel  says  of  such  a  case,  (book 
2,  c.  6,  §  75:)  'If  the  oft'ended  state  has  the  offender  in  her 
power  she  may,  without  scruple,  punish  him.'  Again,  if  he 
have  escaped  and  returned  to  his  own  country  she  may  apply 
for  justice  to  his  sovereign,  who  ought,  under  some  circum- 
stances, to  deliver  him  up.  Id.  §  76.  Again,  he  sa3'S,  she 
may  take  satisfaction  for  the  offence  herself,  when  she  meets 
with  the  delinquent  within  her  own  territory.  Book  4,  c.  4, 
§  52.  I  before  cit-ed  two  instances  in  which  positive  orders 
by  his  sovereign,  to  commit  a  crime,  are  distinctly  held  to 
render  both  the  nation  and  subject  obnoxious  to  punishment. 
Vattel,  book  3,  c.  2,  §  15.  Same,  book  1,  c.  6,  §  75.  Vide, 
also,  1  Burrill,  part  2,  c.  1,  §  10. 

"Was  it  ever  suggested  by  any  one,  before  the  case  of 
McLeod  arose,  that  approval  by  monarchs  should  oust  civil 
jurisdiction,  or  even  so  much  as  mitigate  the  criminal  offence  ? 


CRIMES.  836 

TSTay,  that  the  coalition  of  great  power  with  great  crime  does 
not  render  it  more  dangerous,  and,  therefore,  more  worthy 
of  punishment  under  every  law  by  which  the  perpetrator  can 
be  reached  ?"(/t) 

§  322.  As  to  the  obligation  of  extradition  of  criminals 
there  has  been  a  decided  conflict,  even  among  the  most  emi- 
nent jurists.  But  the  weight  of  authority  is,  doubtless,  that 
it  is  a  matter  of  comity  and  of  treaty.  Whatever  obligations 
may  be  supposed  to  exist  relate  only  to  such  crimes  as  are 
universally  recognized  by  the  law  of  nations,  and  which, 
therefore,  are  punishable  in  all.  But  it  has  been  stoutly  con- 
tended, by  eminent  men,  that  no  obligations  exist  any  where 
■except  by  virtue  of  treaties  specially  providing  for  the  extra- 
dition of  accused  persons.  And  especially  is  it  held  that, 
independent  of  treaty,  a  surrender  cannot  rightfully  be  made 
to  a  state  where  a  fair  trial  cannot  be  had  in  the  demanding 
country;  as,  where  a  surrender  would  expose  the  fugitive  to  a 
barbarous  punishment,  revolting  to  a  civilized  jurisprudence; 
and  the  surrendering  country  may  even  impose  conditions  as 
to  the  way  in  which  the  fugitive  shall  be  tried.  And  further, 
-even  under  treaty,  a  fugitive  will  not  be  surrendered  where 
ihe  demanding  country  proposes  to  subject  him  to  a  punish- 
ment in  an  oppressive  trial,  not  within  the  contemplation  of 
the  parties  when  the  treaty  was  adopted.  Nor,  in  general, 
ought  there  ever  to  be  any  extradition,  by  treaty  or  other- 
wise, for  mere  political  offences,  on  account  of  the  usual  want 
of  moderation  which  characterizes  the  punishment  of  such 
offences,  and  especially  on  account  of  the  fact  that  what  con- 
stitutes treason  is  so  variously  defined  in  different  coun- 
tries, (i)  And  even  between  the  different  states  of  the  Union 
it  is  held  that,  if  there  is  not  to  be  a  fair  trial  in  the  demand- 
ing state,  extradition  may  be  properly  refused.  And  on  this 
ground,  it  seems,  Judge  Blatchford,  in  New  York,  in  the  year 
1873,  refused  to  grant  a  warrant  to  surrender  Charles  A. 
Dana  to  the  authorities  of  the  •istrict  of  Columbia,  because 

(i)People  V.  McLeod,  25  Wead.  (i)Whart.  Crim.  Law,  H  2956-7. 

<N.  Y.)  595. 


336  CRniES. 

there  he  was  to  he  tried  before  a  police  court,  where  juries 
were  only  allowed,  after  conviction,  on  appeal. (j) 

Moreover,  it  is  held  that  no  extradition  should  be  granted 
exceiDt  on  a  pledge  that  the  person  surrendered  shall  not  be 
tried  on  any  other  than  the  alleged  offence  ;  (/.)  although  in  the 
recent  Winslow  case,  the  United  States  government  refused  to 
give  such  a  pledge,  and  the  probable  consequence  is  the  abro- 
gation of  our  existing  treaties  on  this  subject  with  Great  Britain, 
or  a  remodeling  of  them,  at  least.  [This  result  did  not  follow 
as  I  supposed  it  would  when  the  passage  above  was  written 
in  the  text.  But  the  principle  claimed  by  Great  Britain  is 
the  trae  one,  I  think.]  Where  an  extradited  prisoner  pleaded 
that,  under  the  British  act  of  1870,  he  was  exempt  from  trial 
for  any  other  offence  than  the  one  specified  in  the  demand, 
and  that  the  president  of  the  United  States  had,  accordingly, 
directed  the  district  attorney  not  to  proceed  against  him  for 
any  other  charges,  the  Ignited  States  district  court  for  the 
southern  district  of  New  York,  wherein  indictment  was  pend- 
ing, held  that  there  is  nothing  in  the  nature  of  extradition 
proceedings  to  give  the  immunity  claimed;  that  the  treaties 
of  1842  and  1848,  and  the  act  of  congress  of  1869,  gave  no 
such  privileges;  and  that  the  British  act  of  1870  could  not 
control  those  treaties ;  and  that  no  order  of  the  president 
could  have  any  legal  effect  to  restrict  or  enlarge  the  jurisdic- 
tion of  the  courts  acting  under  the  United  States  statutes. 
U.  S.  V.  Lawrence,  13  Blatchf.  295.  The  Kentucky  court  has 
placed  a  different  construction  on  the  treaty  of  1842,  and  has 
held  that  the  prohibition  is  therein  contained  l)y  reason  of  the 
language  and  general  scope  of  the  treaty,  though  not  ex- 
pressed in  plain  terms,  and  that,  therefore,  a  prisoner  cannot 
be  tried  for  any  other  offence  than  that  for  which  he  was  ex- 
tradited; although,  if,  after  a  full  discharge  from  custody, 
and  reasonable  time  allowed,  he  returns  or  remains  volun- 
tarily within  the  jurisdiction,  he  may  be  proceeded  against 
in  the  usual  manner.     Cominonicealth  v.  Hawes,  13  Bush.  697. 

Extraditions  for  military  offences  are  not  common,  and  when 

(i)Whart.  Crim.  Law,  ^  2953a.  (/fc)Ibid,  H  2965a,  2958. 


CRIMES.  337 

granted  -are  subjected  to  very  rigid  limitations;  and  as  to  sub- 
jects of  tbe  asylum  state  it  has  been  declared:  "The  true  rule 
is  that  wherever,  by  the  jurisprudence  of  a  particular  country, 
it  is  capable  of  trying  one  of  its  subjects  for  an  offence  alleged 
to  have  been  committed  by  such  subject  abroad,  the  extra- 
dition in  such  case  should  be  refused,  and  the  asylum  state 
should  reserve  to  itself  the  right  of  trying  its  own  subject  by 
its  own  laws.  When,  however, — as  is  the  case  with  England 
and  the  United  States, — it  does  not  assume  jurisdiction  of 
extra-territorial  crimes,  (with  certain  marked  exceptions,)  then 
extradition  should  be  granted;"  and  where  the  asylum  state 
has  itself  jurisdiction  on  other  grounds,  as  where  an  offence 
was  committed  on  the  high  seas,  it  is  held  that  extradition 
should  not  be  acceded  to.(^) 

These  are  some  of  the  outlines  of  jurisdiction  acquired  by 
extradition  under  the  law  of  nations,  or  under  treaties.  It  is 
held  that  a  treaty  only  embraces  actually  enumerated  crimes, 
and  that  herein  a  greater  crime  does  not  include  the  less ;  as, 
for  example,  murder  does  not  include  manslaughter.  Kelley's 
Case,  2  Low.  339.  We  notice  further  some  of  the  adjudicated 
cases  in  order  more  fully  to  explain  this  highly  important 
matter. 

As  to  extradition  between  the  states  of  the  Union  it  is 
required  by  the  U.  S.  St.  of  1793,  (1)  that  the  demand  be 
made  by  the  executive  of  the  demanding  state ;  (2)  that  there 
be  a  copy  of  an  indictment,  or  an  affidavit  before  a  magis- 
trate charging  the  crime,  furnished  with  the  demand;  and  (3) 
that  such  copy  be  certified  by  the  executive  to  be  genuine. 
It  is  not  needful  to  set  out  evidence  of  guilt;  the  legal  accu- 
sation is  a  sufficient  basis  for  the  surrender,  (m)  It  must, 
moreover,  appear  that  the  crime  was  committed  in  the  state 
demanding,  and  that  the  offender  fled  from  justice. (n)  And 
all  these  facts  must  be  stated  distinctly,  and  cannot  be  merely 
inferred  from  the  statements  actually  made.(o) 

(Z)Ihid,  ^  2959,  2960,  2961.  (/i)Sniith's     (the    Mormon    pro- 

(m) Kingsbury's   Case,   106  Masa.       phet's)  Case,  3  McLean  (U.  S.)  132. 
228.  (o)Heyward'3  Ca.se,  1  Sand.  (N.  Y.) 

707. 

v.l— 22 


33S  CBIMES. 

However,  an  arrest  may  be  made  in  order  to  a  surrender, 
before  an  actual  requisition  arris'es,  and  it  is  not  necessary,  in 
order  to  warrant  such  arrest  or  surrender,  that  the  crime 
charged  should  constitute  an  offence  at  common  law.(p) 

As  to  foreign  powers,  under  the  extradition  treaty  with 
Great  Britain  of  1842,  and  under  the  prior  one  of  1795,  the 
matter  of  surrendering  a  fugitive  from  justice  has  been  held 
not  to  rest  alone  in  the  discretion  or  judgment  of  the  presi- 
dent ;  but  if  he  was  first  satisfied  that  a  proper  case  was  made 
to  justify  an  inquiry,  the  demandants  were  referred  to  the 
judiciary,  and  it  seems  that  the  judiciary  might  even  go  into 
an  inquiry  as  to  the  truth  of  the  charge,  so  far,  at  least,  as  a 
grand  jury  does  in  order  to  make  a  presentment ;  the  treaty 
itself  expressly  providing  that  the  surrender  shall  not  be  made 
untn  the  crime  is  established  according  to  the  laws  of  the  coun- 
try wherein  the  fugitive  is  found,  (q)  In  this  matter,  also,  it  has 
been  held  that  states,  if  they  please,  may  properly  pass  laws 
at  discretion,  to  aid  congress  in  fulfilling  the  requirements  of 
the  treaty,  and  if  those  laws  are  consistent  with  those  passed 
by  congress,  they  will  be  deemed  valid  and  encouraged,  (r) 
And  so,  state  judges  may  act  as  well  as  national  judges  in  the 
necessary  preliminary  examinations. (s)  But  all  proceedings 
must  be  under  statute,  since  a  treaty  cannot  execute  itself, 

0:i)Fetter's  Case,  3  Zabr.  311.  (.s)Heilbouii's  Case,  1  Park  Crim. 
And  it  is  held  that  a  legislature  R.  (N.  Y.)  429. 
may  authorize  the  arrest  and  deten-  A  judge  of  the  United  States  can 
tion  of  a  person  alleged  to  be  a  act  on  a  complaint,  and  issue  hig 
fugitive,  in  order  to  await  a  requi-  warrant,  without  any  previous  ap- 
sition,  and,  in  so  doing,  may  im-  plication  having  been  made  to  the 
pose  conditions  at  pleasure  which  president ;  but  he  is  not,  in  such 
must  be  complied  with.  RosenblaVs  case,  to  consider  whether  the  com- 
^'ase,  51  Cal.  285.  And  a  suspected  plaint  has  been  authorized  by  a 
person,  on  proper  complaint  and  foreign  government.  He  is  merely 
evidence,  may  be  held  long  enough  to  inquire  into  the  evidences  of 
to  communicate  with  another  exec-  criminality  ;  and  if  he  regards  these 
utive  in  relation  to  a  requisition  not  as  sufficient  to  sustain  the  charge 
yet  made.  Komaine's  Case,  1  Utah  made,  his  duty  is  to  certify  it  to  the 
T.  23.  secretary  of  state.  And  it  is  not 
(^)Kaine'sCase,14How.  140;  The  necessary  that  the  accused  be  con- 
British  Prisoners,  1  W.  &  M.  69,  72.  fronted  with  the  witnesses  against 
(r)Page  71.  him.     Dugan's  Case,  2  Low.  367. 


CRIMES.  339 

and  neither  the  president,  nor  the  courts,  can  act  under  a 
treaty  except  in  pursuance  of  a  statute. (i)  And  the  same  rule, 
as  a  matter  of  course,  applies  to  the  executive  authorities  of 
a  state  in  matters  of  foreign  extradition,  (n)  In  Illinois,  Gov- 
ernor Cullom,  in  1879,  recalled  his  warrant  on  requisition 
even  after  the  demanded  persons  had  been  arrested  under 
the  warrant,  but  before  they  had  been  taken  out  of  the  state, 
which  would  indicate  that  the  power  of  revocation,  in  his 
opinion,  exists  so  long  as  the  prisoners  are  within  the  state, 
even  though  delivered.  There  seems  to  be  no  legal  principle 
to  authorize  such  a  view  of  the  matter.  But  a  governor's 
error  herein  is  practically  remediless. 

An  application  may  be  heard  by  a  United  States  district 
judge,  at  chambers,  and  his  decision  thus  is  final  and  decisive, 
and  cannot  be  apj)ealed  from.(?;) 

(<)Metzger's  Case,  1  Barb.  (N.  Y.  («)Holmes  v.  Governor,  14  Pet. 

248.  558;     Holmes'    Case,  12    Vt.   635. 

(«)Metzger-s  Case,  5  How.  191. 


34:0  BANKRUPTCY. 


CHAPTEE  71. 

BANKRUPTCY, 

i  323.  Original  jurisdiction  in  bankruptcy. 

324.  Disability  of  district  judge. 

325.  Exercise  of  jurisdiction  as  to  terms. 

326.  Appearance. 

327.  Pending  suits  in  other  courts. 

328.  Assignee  as  party  in  other  courts. 

329.  Effect  of  bankrupt  laws  on  state  insolvent  law* 

330.  Acts  of  bankruptcy. 

331.  Preference  of  creditors. 

332.  Minors. 

333.  Defence  by  debtor. 

334.  Discbarge  without  jurisdiction. 

335.  Subsequent  creditors. 

336.  Beginning  of  proceedings. 

337.  Prior  liens. 

338.  Conflict  of  jurisdiction  between  federal  and  state  courts. 

339.  Concurrent  jurisdiction  between  district  courts. 

340.  Accounting  between  members  of  a  bankrupt  firm. 

341.  Ousting  jurisdiction  by  payments. 

342.  Protection  of  debtor  from  arrest  by  state  court. 

343.  Extent  of  bankruptcy  jurisdiction. 

344.  Bankruptcy  by  a  corporation. 

§  323.  The  original  jurisdiction  in  bankruptcy  proceedings 
is,  by  act  of  congress,  vested  exclusively  in  the  district  courts 
of  the  United  States,  and  extends  to  collecting  and  disposing 
of  all  the  bankrupt's  assets,  ascertaining  and  liquidating  liens 
with  regard  to  their  priorities,  and  making  due  distribution  of 
the  funds  to  all  the  creditors.  However,  there  is,  in  the  circuit 
courts,  a  kind  of  semi-appellate  jurisdiction  for  revisory  and 
perhaps  advisory  purj^oses.  But  this  relates  wholly  to  cases 
or  questions  previously  arising  in  the  district  courts,  and 
there  is  no  mode  of  transferring  the  original  jurisdiction  from 
the  district  to  the  circuit  courts,  since  the  two  courts  have  no 
concurrent  jurisdiction  therein,  and  the  act  of  congress  makes 


BANKEUPTCY.  341 

that  of  the  district  court  exclusive  as  to  the  original  powers; 
and  accordingly  the  circuit  court  has  no  power  even  to  make 
orders  in  specific  enforcement  or  execution  of  the  orders  or 
decrees  of  the  district  court.  And  in  a  case  where  a  party 
sought  such  an  exercise  of  jurisdiction,  the  court  remarked 
that  the  claim  could  "only  rest  upon  the  ground  that,  by  force 
of  the  language  of  the  second  section  of  the  congressional  act, 
it  is  competent  for  the  parties  to  come  into  this  court,  and 
seek  original  orders  and  decrees  in  the  due  and  ordinary 
course  of  such  proceedings,  either  to  facilitate  the  completion 
thereof,  or  to  carry  them  into  effect;  that  the  proceedings 
having  been  duly  instituted,  the  parties  have  an  option  to 
apply  to  either  court  to  expedite,  or  consummate,  the  same; 
and,  in  short,  that,  so  soon  as  such  proceedings  have  been 
begun,  they  may  be  continued  in  either  court,  or  partly  in  one 
and  partly  in  the  other.  And  yet,  when  this  claim  is  thus 
broadly  stated,  no  counsel  will,  we  think,  seriously  insist  that 
the  section  warrants  so  unprecedented  and  extraordinary  a 
confusion  of  jurisdiction,  "(a) 

§  324.  However,  where  a  district  judge  is  under  any  disa- 
bility, the  circuit  judge  may,  according  to  the  act  of  congress 
of  June  30,  1870,  make  needful  rules  and  orders,  to  prepare 
for  a  final  hearing,  and  cause  the  same  to  be  entered  of  rec- 
ord by  the  clerk  of  the  district  court,  who  may  issue  also, 
upon  such  orders  or  rules,  any  necessary  notifications.  And 
the  supreme  court  of  the  District  of  Columbia  has  the  juris- 
diction of  the  district  court  generally,  as  also  the  supreme 
courts  of  the  territories  have. 

§  325.  The  exercise  of  bankruptcy  jurisdiction  does  not 
depend  upon  time  or  place  within  the  district,  but  the  courts 
are  considered  always  open,  and  business  may  be  transacted 
in  these  matters  either  in  vacation,  or  in  terra  time,  and,  on 
notification,  they  may  sit  at  any  place  within  the  district. 

§  326.  Process  may  be  waived,  and  appearance  will  confer 
jurisdiction,  even  if  the  party  resides  outside  of  the  district. 
And  a  party  proving  his  claim  is  thus  in  court  by  his  volun- 
tary act,  and  may  be  served  with  the  copy  of  an  ortler, 
(a)Bininger's  Case,  7  Blutch.  C.  C.  1*>3,  lOG 


ni2  BANKRUPTCY. 

altliongii  living  out  of  the  district.  And  jurisdiction  thus 
attaching  by  a  vohmtary  appearance  cannot  subsequently  be 
withdrawn.  (^) 

§  327.  The  jurisdiction  is  not  only  exclusive,  but  proceed- 
ings thereby  transfer,  on  due  notice,  all  pending  suits  in 
other  courts  to  the  supervision  of  the  bankrupt  court,  inso- 
much that  the  assignee,  when  appointed,  is  to  be  substituted 
therein  to  conduct  the  suits  as  a  party.  The  interference, 
however,  only  extends  so  far  as  is  necessary  for  the  efficient 
exercise  of  the  bankruptcy  jurisdiction,  in  the  disposition  of 
the  bankrupt's  assets. (c)  And  if  the  proceedings  in  other 
courts  are  directly  in  violation  of  the  bankrupt  law,  there  is 
the  power  of  direct  interference,  according  to  most  authori- 
ties, although  the  doctrine  has  not  obtained  universal  acquies- 
cence. ((/) 

§  328.  When  an  assignee  has  been  appointed,  he  may  sue 
and  defend  in  courts,  much  as  an  ordinary  party  may.  And 
so,  an  assignee  may  come  into  a  state  court  to  set  aside  a 
mortgage  executed  in  fraud  of  tlie  bankrupt  law,  since  a  state 
court  may  aid  in  carrying  out  the  provisions  of  the  bankrupt 
law.  Iscft  V.  Stuart,  80  111.  404  :  Ward  v.  Jenkins,  10  Met. 
583;  Stevens  v.  Savings  Bank,  101  Mass.  109  ;  Forbes  v.  Howe, 
102  Mass.  428;  Hastings  v.  Fowler,  2  Carter,  (Ind.)  216; 
Brown  V.  Hall,  7  Bush,  t>0;  .V((//,s'  v.  Maniif.  Nat.  Bank,  64 
Pa.  74;  Cook  v.  Whipple,  55  N.  Y.  160;  Cogdell  v.  Exuni,  69 
N.  C.  465;  Whiteridge  v.  Taylor,  QQ  N.  C.  273;  and  circuit 
court  of  United  States  for  North  Carolina  district,  in  State  of 
X.  C.  V.  Universitff,  65  N.  C.  714,  (appendix.)  Contra:  Brig- 
ham  V.  Claflin,  31  Wis.  ♦;07;  Voorhes  v.  Frishee,  25  Mich.  476 — 
on  the  ground  that  a  state  court  cannot  lawfully  assume  juris- 
diction under  the  laws  of  the  United  States.  The  courts  in 
the  majority,  however,  sustain  the  jurisdiction  merel}'  on  the 
ordinary  basis  of  jurisdiction,  with  the  assignee  as  a  party. 
§  329.  The  effect  of  the  bankrupt  law  upon  the  insolvent 
laws  of  the  states  is  to  suspend  their  operation  while  the 
bankrupt  law  continues  in  force. 

fA)HumponBankraptcy,(5thEd.)  (f)Ibvd,  174. 

1'^-:  17:3.-  (<f)Ibid,  179. 


BANKRUPTCY,  343 

§  330.  In  involuntary  bankruptcy,  there  must  be  an  act 
of  bankrwptcy  before  a  district  court  can  entertain  a  petition 
of  creditors.  The  leading  act  specified  by  the  law  is  the  fail- 
ure of  a  banker,  merchant,  or  trader,  who  has  suspended  pay- 
ment of  his  commercial  paper,  to  resume  within  fourteen 
days.  This  is  held  prima  facie  evidence  of  fraud;  and  unless 
such  inference  is  rebutted,  affirmatively,  a  creditor's  petition 
to  adjudge  him  a  bankrupt  will  be  entertained  and  granted. (e) 
The  stoppage  must  be  fraudulent,  at  least  presumptively ;  but 
then  there  is  no  necessity  that  the  failure  to  resume  should, 
in  itself,  be  fraudulent.  Even  if  there  be  no  fraud,  yet  if  it 
continues  fourteen  days  there  is  an  act  of  bankruptcy,  and 
that,  too,  if  there  were  no  actual  fraud  in  the  original  stopping, 
as  above  stated.  Such  actual  fraud  is,  of  itself,  an  act  of 
bankruptcy  as  to  the  stoppage,  and  a  petition  thereon  may 
be  immediately  preferred  without  waiting  for  the  fourteen 
days.  The  failing  to  resume  is  in  itself  presumptively  fraud- 
ulent, but  the  presumption  may  be  rebutted.  (/)  And  a  dis- 
proof of  fraud  in  the  original  stoppage,  and  of  the  presump- 
tion of  fraud  arising  from  the  fourteen  days'  suspension,  will 
oust  the  jurisdiction  of  the  bankrupt  court. (.17) 

But,  as  a  matter  of  course,  a  refusal  to  pay,  based  on  the 
ground  of  a  legal  defence  against  the  payment,  is  not  such  a 
stoppage,  or  suspension,  as  is  contemplated  by  the  bankrupt 
law.(/i)  And  the  legal  defence  may  exist  only  in  the  bona 
fide  belief  of  the  debtor,  and  if  it  should  turn  out  that  he  was 
mistaken  therein,  the  refusal  is  not  an  act  of  bankruptcy.(i) 
In  a  case  where  a  note  was  in  suit,  in  New  York,  the  plaintiff 
petitioned  the  district  court  for  an  adjudication  of  bank- 
ruptcy, on  the  ground  that  the  debtor  had  suspended  the 
payment  of  the  note  for  fourteen  days ;  but  the  petition  was 
dismissed,  with  the  remark:  "It  is  not  for  this  court  to  try 
the  question  of  the  actual  liability  of  the  debtor  on  the  note, 
and  adjudge  that  there  was  a  suspension  of  payment  of  his 

(e)Shea  &  Boyle's  Case,  2  Diss.  C.  ((/) Davis'  Case,  3  Ben.  482. 

Q  ifjg  (/4)Thoinpson  &  McClallen's  Case, 

(/)Thompson&McClallen'sCase,  2  Biss.  168. 
2  Biss.  166.  {i)Wcstcott'3  Case,  6  Ben.  136. 


344r  BANKRUPTCY. 

commercial  paper,  if  such  liability  existed.  The  proper 
forum  for  the  determination  of  the  question  as  to  such  liabil- 
ity is  the  court  in  which  the  suit  on  the  note  is  pending,  "(j) 
The  matter  is  thus  stated :  "It  is  not  a  stoppage,  or  sus- 
pension, -within  the  clause,  when  a  sufficient  excuse  is  shown 
why  the  paper  was  not  j)aid;  and  even  though  the  suspension 
may  have  continued  for  fourteen  days,  yet  a  bona  fide  denial 
of  liability  on  the  paper,  in  resj^ect  to  which  the  suspension 
occurs,  is  such  an  adequate  legal  excuse  that  a  person  ought 
not  to  be  adjudged  a  bankrupt  solely  for  suspending  for  four- 
teen days  on  the  paper,  even  though,  on  investigation,  the 
bankruptcy  court  may  be  of  opinion  that,  in  fact,  the  debtor 
was  liable  on  the  paper.  See  Davis  v.  Armstrong,  3  Bank 
Eeg.  6;  In  re  Thompson,  Id.  45;  In  re  HoUis,  Id.  82.  The  true 
view  on  this  subject  is,  in  my  judgment,  that  laid  down  in 
McLean  v.  Broivn,  4  Bank  Eeg.  188,  by  Judge  Treat,  that  the 
suspension  referred  to  in  the  act  is  a  general  suspension  of 
commercial  paper — not  the  refusal  to  pay  paper  in  respect  to 
which  liability  is  denied ;  that  a  bankruptcy  court  will  not  sit 
to  try  the  validity  of  the  reasons  alleged  for  the  non-payment 
of  the  paper  in  respect  to  which  the  liability  is  denied;  that 
it  is  not  a  court  for  the  mere  collection  of  debts ;  that  each 
case  must  be  considered  by  itself,  in  connection  with  the  cir- 
cumstances surrounding  it;  but  that  when  a  party  fails  to 
pa}'  his  paper  for  want  of  means,  and  continues  unable  to 
pay  it,  he  has  suspended  within  the  meaning  of  the  act.*  It 
by  no  means  follows  that  a  debtor  may  not,  under  certain 
circumstances,  be  considered  as  having  really  suspended  pay- 
ment, generally,  of  his  commercial  paper,  although  but  a 
single  piece  of  paper  is  shown  to  have  lain  over  unpaid  for 
fourteen  days.  On  the  other  hand,  the  court  must  guard 
against  being  imposed  upon  by  a  denial  of  liability,  which  is 
altogether  sham,  and  not  made  in  good  faith.  The  denial  of 
liability,  may,  however,  be  founded  on  reasons  which  are  not 
valid,  and  which  would  fail  as  a  defence  in  a  direct  action  on 
the  paper;  and  yet  the  denial  may  be  made  in  good  faith,  in 

(j)Mannheim's  Case,  6  Ben.  271.      which  seems  to  have  been  left  out 
*But  the  act  says  "fraudulently,"      of  sight  by  the  court  here. 


BANKRUPTCY.  345 

such  wise  that  the  non-payment   cannot  be  regarded  as  a 
stoppage  or  suspension  within  the  act. "(A;) 

Moreover,  where  one  is  restrained  from  applying  his  assets, 
it  is  not  an  act  of  bankruptcy  not  to  pay  a  note  presented  while 
the  restraint  is  in  force.  Thus,  where  one  filed  against  an- 
other a  petition  in  bankruptcy,  on  which  an  injunction  was 
issued  restraining  the  alleged  bankrupt  from  disposing  of  or 
transferring  his  property,  and  then  a  subsequent  petition  was 
filed  against  him,  setting  out  as  an  act  of  bankruptcy  that  he 
had  refused,  for  fourteen  days,  to  pay  a  note  falling  due  after 
the  injunction  was  served,  it  was  held  such  refusal  or  failure 
was  no  act  of  bankruptcy,  since  it  was  under  a  legal  prohibi- 
tion against  using  his  assets  to  pay  the  note. (I) 

The  obtaining  renewals  of  commercial  paper,  or  paying  un- 
der certain  circumstances  a  large  discount,  when  similar 
commercial  paper  is  selling  at  equal  rates  in  the  market,  is 
not  an  act  of  bankruptc3\(/;t) 

The  making  of  a  general  assignment  of  his  property  by  the 
debtor,  even  without  j)reference,  is  an  act  of  bankruptcy;  and 
that,  too,  even  if  the  debtor  denies  any  intention  to  defeat  the 
operation  of  the  bankrupt  act  in  any  way,  or  to  hinder  his 
creditors ;  it  being  held  that  in  such  case  fraud  is  a  conclusive 
presumption,  and  not  to  be  rebutted  by  proof  of  actual  inten- 
tion, since  the  consequences  must  necessarily  follow,  the  in- 
tention of  which  is  disavowed. (n) 

§  331.  Any  preference  to  creditors,  when  a  trader  is  insolv- 
ent, is  made  void  by  the  exercise  of  bankruptcy  jurisdiction, 
provided  the  jn'eferred  creditor  has  reasonable  grounds  to 
believe  that  his  debtor  is  insolvent.  And,  if  one  obtains  a 
warrant  of  attorney  to  confess  judgment  on  a  bona  fide  debt, 
having  no  knowledge  of  the  insolvency  of  the  debtor,  and  no 
means  of  knowing,  but,  at  the  time  judgment  is  actually 
confessed  under  the  warrant,  he  has  such  knowledge,  the 
judgment  cannot  be  sustained. (o)  And  the  fact  of  non-pay- 
ment of  a  note  against  which  there  is  no  legal  defence,  is  held 

(A)Her(;u]es  Life  Assiinince  Co.'s  (///)!J(;Is(jii  v.  NiehofE,  2  Biss.  434. 

Case,  6  Ben.  40.  (/(jSinilh's  Ca.se,  4  Ben.  1. 

(?)  Pratt's  Case,  G  Ben.  lG;j,  (r/)Golson  v.  Niehoff,  2  Biss.  434. 


346  BANKRUPTCY. 

sufficient  to  charge  a  creditor  with  notice, (p)  And,  also,  if  a 
creditor  has  reasonable  cause  to  believe  that  the  debtor  is 
insolvent,  even  though  he  had  not  actually  stopped  payment 
of  maturing  obligations. (</) 

The  inquiry  is  not  as  to  what  the  creditor  actually  did 
believe,  in  regard  to  the  insolvency,  but  whether  he  had  rea- 
sonable grounds  to  believe  the  debtor  insolvent  at  the  time  of 
receiving  a  mortgage  or  other  security.  And  the  grounds  are 
to  be  passed  upon  by  the  court  when  the  security  is  sought 
to  be  avoided,  and  are  to  be  judged  according  to  custom  in 
the  place  where  the  transaction  occurred,  since  it  is  held  that 
the  strict  definition  that  j)revails  in  relation  to  insolvency  in 
commercial  centers  should  not  be  applied  to  country  places,  so 
that  a  party  is  only  to  be  considered  insolvent  when  he  fails 
to  meet  his  debts  according  to  the  usages  and  customs  of  the 
place  of  his  business. (r) 

To  render  a  transaction  between  a  creditor  and  debtor  void, 
the  following  elements  must  co-exist :  Insolvency  of  the  debtor, 
an  intention  to  give  a  preference  to  the  creditor,  and  an  actual 
doing  or  suffering  that  which  works  out  a  preference,  on  the 
one  hand ;  and  on  the  other,  the  receiving  the  benefit  of  such 
thing,  the  having  reasonable  cause  to  believe  the  debtor  in- 
solvent, and  the  having  reasonable  cause  to  believe  that  a 
preference  was  intended. (s) 

§  332.  But  a  minor  is  incapable  of  committing  an  act  of 
bankruptcy,  and  if  an  adjudication  be  had,  it  may  be  set 
aside  on  the  application  of  a  creditor,  even  after  the  minor 
comes  of  age,  and  even  if  he  himself,  after  coming  of  age, 
files  a  petition  to  have  the  former  proceedings  confirmed  ;(f) 
for  the  fact  that  he  comes  into  court  and  ratifies  and  confirms 
the  proceedings  is  held  to  have  no  effect  whatever  to  give  the 
court  authority  or  jurisdiction  as  of  the  time  of  adjudication. 

§  333.  A  debtor,  in  proceedings  for  an  involuntary  bank- 
ruptcy against  him,  has  the  right  to  dispute  the  right  of  the 
creditor  to  file  a  petition  ;  and,  for  this  purpose,  to  show  that 

(p)DunnJng  v.  Perkins,  Ibid,  422.  (r)Hall  v.  Wager,  3  Biss.  29. 

(5)!Sedgwick  v.  Sheffield,6  Ben.  22;  (s)Kohlsaat  v.  Hoguet,4  Beu.  565. 

Grant  v.  National  Bank,  97  U.  S.  80.  (<)Derhy's  Case,  6  Ben.  233. 


BANKKUPTCY.  34:7 

the  claim  is  barred  by  the  statutes  of  limitation  of  the  state 
where  the  debtor  resides — for  it  is  only  valid  and  enforceable 
debts  that  can  form  a  proper  basis  of  adjudication  in  bank- 
ruptcy, (w) 

§  33-i.  A  discharge,  without  jurisdiction,  is  void,  whether 
the  discharge  is  resisted  or  not.(f;)  And  a  creditor,  in  vol- 
untary bankruptcy,  may  oppose  a  discharge  on  the  ground  of 
the  non-residence  of  the  applying  debtor  within  the  district 
where  the  application  is  made,  and  that  notwithstanding  the 
debtor  may  have  a  desk  in  an  ofiice  within  the  district,  where 
he  did  his  correspondence,  and  kept  his  books  and  papers, 
and  was  engaged  in  closing  up  the  business  of  his  firm,  and 
did  no  other  business,  and  had  no  other  place  of  business,  (if) 

§  335.  A  creditor,  who  became  a  creditor  after  the  act  of 
bankriiptcy  complained  of,  cannot  properly  be  allowed  to 
maintain  a  petition  for  adjudication.  The  debt  must  exist 
at  the  time,  although  it  is  not  necessary  that  it  should  then 
be  due. (a;) 

§  336.  The  filing  of  a  petition,  and  not  the  service  of  an 
order  to  show  cause  why  one  should  not  be  adjudged  a  bank- 
rupt, is  the  beginning  of  proceedings  in  involuntary  bank- 
ruptcy; and  then  the  jurisdiction  of  the  court  attaches  to 
enjoin  third  parties  from  interfering  with  the  debtor's  goods, 
and  to  issue  a  warrant  to  take  provisional  possession  of  them 
to  prevent  a  misapplication,  (r/)  And  no  interest  acquired 
subsequently  to  the  filing  of  the  petition,  by  proceedings  in  a 
state  court,  or  otherwise,  with  notice,  will  be  valid,  or  stand 
against  the  decree  in  bankruptcy.  (5;) 

§  337.  And  even  in  regard  to  prior  liens  it  is  held  they 
must  be  submitted  to  the  arbitrament  of  the  bankruptcy  court, 
on  notice  of  the  creditor. 

Thus,  where,  under  an  order  from  a  bankruptcy  court,  a 
steamship  was  delivered  to  the  assignee  appointed,  and  a  libel 
was  afterwards  filed  against  the  vessel  to  recover  damages  for 

((z)Cornwairs  Case,  9  Blatcb.  115.  (.t)Muller    and    Brentun's    Case, 

(«)Ponn'8  Case,  4  Ben.  100.  Doady,  513. 

{w^)Litlle's  Case,  3  Ben.  25.  (,'/)Il'id. 

(,:)S)nith  «.  I5ii(li:maii,  H  Blalcli.  153. 


34:8  BANKKUPTCY. 

a  collision  which  had  happened  before  the  adjudication,  the 
libellants  were,  on  this  ground,  enjoined  from  interfering  with 
the  vessel  in  the  hands  of  the  assignee. (a) 

§  338.  On  this  matter  a  conflict  of  jurisdiction  may  ensue 
between  the  federal  and  state  courts;  as,  for  example  in  rela- 
tion to  the  foreclosure  of  a  mortgage,  concerning  which  it  is 
held  that,  in  general,  mortgagees  should  not  be  permitted  to 
pursue  the  estate  of  the  bankrupt  in  the  state  courts,  but 
should  come  to  the  trilmnal  which,  under  the  federal  laws, 
is  charged  with  its  administration,  although  "special  circum- 
stances may  sometimes  exist  in  which  there  is  no  reason  for 
objection  by  the  assignee;  as,  for  example,  where  the  mort- 
gaged premises  are  confessedly  of  less  value  than  the  mort- 
gaged debt,  and  where  a  foreclosure  is  pending  and  proceed- 
ings are  nearly  completed  at  the  time  the  proceedings  in 
bankruptcy  are  commenced,  it  may  sometimes  be  convenient 
and  economical 4o  suffer  the  validity  of  the  mortgage,  and  the 
amount  due,  to  be  settled  in  the  state  court ;  and,  even  then, 
whether  to  permit  a  sale  by  the  decree  of  the  state  court  or 
not,  will  be  in  the  discretion  of  the  court  in  bankruptcy. "(/>) 
However,  jurisdiction  to  foreclose  a  mortgage  is  not  included 
in  the  summary  powers  conferred  upon  the  court  by  the  stat- 
ute, (c)  but  this  must  be  by  regular  suit,  under  the  dictation  of 
the  court. ((Z)  The  summary  jurisdiction  is  adequate  where, 
under  a  lien,  it  only  remains  to  ascertain  'and  liquidate  it.(e) 

The  bankruptcy  court  mav^  enjoin  a  foreclosure  suit  com- 
menced in  a  state  court  after  the  adjudication  is  made  and 
the  assets  assigned, (/)  the  injunction  not  resting  directly  on 
the  state  court,  but  on  the  parties,  (r/) 

But  this  power  is  most  vigorously  denied  in  New  York,(/t) 
in  direct  opposition  to  the  claim  of  the  district  courts,  that 
their   jurisdiction    is    exclusive   over  the   bankrupt's  estate, 

(/■/)People"s  Steamship  Co. 's Case,  (/)Iverosene    Oil    Co.'s    Case,    6 

3  Ben.  22G.  Blatch.  523. 

(/!/)Sacchi's  Case,  10  Blatch.  31.  {,9)Kellog2;  v.  Kus.-^ell,  11  Blatch. 

.     (r)Casey'.s  Case,  Id.  3j^2.  524,  foot  7iofe. 

(r/)Iron    Mountain   Co.'.s   Case,  9          (7i) Clark  «.  Bininger,  38  How.  Pr. 

Blatch.  320.  341. 

{f)Clark's  Case,  9  Blatch.  37G. 


BANKRUPTCY.  349 

wherever  found,  and  whatever  may  be  the  proceedinos  of 
state  courts  in  relation  to  them,  and  notwithstanding  the 
jurisdiction  of  the  state  court  may  first  have  attached. (i) 

Yet  the  state  courts  may  properly  entertain  suits,  either  by 
or  against  the  assignees,  in  the  common  order  of  proceed- 
ings, (,/)  and  even  for  the  collection  of  assets,  etc. 

§  331).  There  may  be  such  a  thing  as  conflict  of  jurisdic- 
tion between  two  district  courts ;  as,  for  example,  where  there 
is  a  bankrupt  corporation  in  two  districts,  such  as  a  railroad 
company  operating  its  road  through  both.  The  rule  in  such 
cases,  however,  is  the  usual  rule  of  concurrent  jurisdiction, 
namely,  the  court  whose  action  is  first  invoked  should  enter- 
tain the  case.(/i) 

And  it  is  held,  in  the  northern  district  of  Illinois,  that 
where  one  has  a  maritime  lien  he  may,  even  after  the  filing 
of  a  petition  in  voluntary  bankruptcy  by  the  owner,  seize  the 
vessel  under  a  libel  in  another  district ;  and  that  the  court  in 
the  latter  district  can  hear  and  determine  the  lien,  and  the 
bankru^Dtcy  court  should  accept  the  determination  of  the  court 
as  to  the  validity  and  amount  of  the  lien.  (7) 

§  340.  A  state  court  is  the  proper  tribunal  to  have  juris- 
diction of  an  accounting  between  the  members  of  a  bank- 
rupt firm ;  and  their  rights,  as  regards  each  other,  will  not 
be  adjudicated  as  the  out-branch  of  a  proceeding  in  bank- 
ruptcy. (?/t)  And  where  a  receiver  is  previously  appointed  by 
a  state  court,  the  bankruptcy  court  will  not  remove  him.  And 
in  a  case  where  an  application  of  the  kind  was  made,  the 
court  refused  it,  and  said:  "Prior  to  the  commencement  of 
the  proceedings  in  bankruptcy  the  action  in  the  state  court 
was  brought,  and  one  of  the  two  receivers  was  appointed  by 
that  court,  and  such  receiver  had  taken  possession  of  the 
property  in  question.  The  property  is  still  in  his  possession, 
and  in  that  of  his  co-receiver,  and  the  application  to  this 
court  is  that,  under  these  circumsta]ices,  the  court  will  sum- 

(j)Merchiints'    Ins.    Co.'s  Case,  3  (/)15o.ston,   etc.,  11.    Co.'.s  Case,  9 

Biss.  1G5.  Blatcli.  109,  400. 

(j)iXvsf)n  t).  Diet/,  ]  Dill.  50().  (^Tlie  Ironsides,  4  Bi.ss.  .019. 

(///)!. :!tlii(ii)"s  Case,  .')  Hen    '^02. 


■S50  BANKRUPTCY. 

niarily  declare  such  jiroperty  to  have  so  been  the  property  of 
the  bankrupt  at  the  time  of  the  commencement  of  the  pro- 
-ceedings  in  bankruptcy,  and  to  have  so  passed  to  the  assignee, 
by  the  assignment  in  bankruptcy  to  him,  as  to  warrant 
this  court  in  directing  the  maishal  to  forcibly  dispossess  the 
receivers,  and  take  the  property  and  put  it  into  the  hands  of 
the  assignee.  The  jurisdiction  of  the  state  court  over  the  sub- 
ject-matter of  the  suit  therein,  and  over  the  parties  thereto, 
when  it  was  instituted,  and  the  receiver  was  appointed,  and  its 
jurisdiction  to  appoint  such  receiver,  are,  in  no  manner, 
impeaclied  or  questioned.  It  is  only  claimed  that,  by  reason 
of  subsequently  transpiring  events,  this  court  shall  decide  that 
the  state  court  ought  to,  and  shall,  by  compulsion  from  this 
court,  be  made  to  give  up  possession  of  the  propert}'  without 
its  being  shown  that  such  possession  of  the  property  by  the 
state  court  can  be  properly  adjudged  by  this  court  to  be  void, 
or  invalid,  by  reason  of  provisions  of  the  bankrupt  act.  It 
would  seem  to  be  only  necessary  to  state  these  propositions 
to  reacii  the  conclusion  that  this  court  cannot  grant  the  par- 
ticular relief  asked.  The  questions  involved  were  considered 
by  this  court  in  the  Case  of  Vojel,  7  Blatch.  18.  When 
property  is  lawfully  placed  in  the  custody  of  a  receiver,  by 
the  court  which  appoints  such  receiver,  it  is  in  the  custody, 
and  under  the  j)rotection  and  control,  of  such  court,  for  the 
time  being,  and  no  other  court  has  a  right  to  interfere  with 
such  possession,  unless  it  be  some  court  which  has  a  direct 
supervisor}^  control  over  the  court  whose  j)rocess  has  first 
taken  possession,  or  some  superior  jurisdiction  in  the  prem- 
ises. Peck  Y.Jenness,  7  How.  012,  625;  WilUams  v.  Benedict, 
8  Id.  107,  112;  WisivaU  Y.Sampson,  14  Id.  52,  66;  Peak  v. 
Phipps,  Id.  368,  374;  Taylor  v.  Carrijl,  20  Id.  583,  594-597; 
Freeman  v.  Howe,  24  Id.  450;  Buck  v.  Colhath,  3  Wall.  334. 
In  the  present  posture  of  this  case  it  does  not  appear  that 
this  court  has  such  superior  jurisdiction  in  the  premises,  or 
such  supervisory  control  over  the  state  court,  in  respect  to 
the  property  in  question,  so  as  to  authorize  it  to  take  avray 
from  the  state  court  the  possession  of  such  property,  or  to 
enjoin  the  receivers  from  further  interfering  with  such  prov^ 


BANKRUPTCY.  351 

-erty.  This  court  will  always  be  sedulous  to  enforce  its  just 
powers;  but  it  will  not  demand  from  any  other  tribunal  any- 
thing which  it  would  not  itself  be  willing  to  concede,  under 
like  circumstances.  In  the  case  referred  to,  of  In  re  Vo(jel, 
it  compelled  the  restitution  to  an  assignee  in  liankruplcy  of 
property  which  had  been  taken  away  by  j^rocess  of  a  state 
court  from  the  custody  of  this  court,  and  its  decision  was 
afiirmed  by  the  circuit  court,  on  review.  The  principle  on 
which  restitution  was  enforced  would  authorize  the  state  court 
in  the  present  case  to  compel  restitution  to  its  receivers  of 
such  property  as  this  court  should  take  away,  b}^  force,  from 
the  custody  of  such  state  court,  and  this  court  might  then 
retaliate ;  and  the  confusion  and  endless  strife  would  ensue 
which  are  so  forcibly  characterized  by  the  supreme  court  in 
the  opinion  delivered  in  the  case  of  Buck  v.  CollxitJi,  before 
cited. "(«) 

§  341.  If,  at  any  time  during  the  pendency  of  proceedings 
in  involuntary  bankruptcy^  the  petitioiiing  creditors  accept 
payments  which  bring  the  amount  below  the  indebtedness  re- 
quired, namely,  two  hundred  and  fifty  dollars,  the  suit  will  be 
dismissed  for  want  of  jurisdiction  in  the  court,  notwithstand- 
ing the  amount  was,  at  the  institution  of  the  proceedings, 
sufficient  to  sustain  the  jurisdiction. (o) 

§  34-2.  It  is  held  that  a  bankruptcy  court  has  jurisdiction 
to  protect  the  debtor  from  arrest,  under  process  in  a  state 
€Ourt,  on  the  ground  of  fraud,  provided  the  debt  is  one  from 
which  a  discharge  would  release  him.  But,  on  the  applica- 
tion, the  court  must  try  the  question  of  fact  involved  in  the 
allegation  of  fraud,  for,  if  the  debt  was  really  fraudulently 
contracted,  the  discharge  will  not  release  it.(;>) 

§  343.  The  summary  jurisdiction  of  the  bankruptcy  court 
over  the  bankrupt's  person  exists  no  longer  than  until  the 
discharge  is  granted  ;  and  it  cannot  afterwards  subject  him, 
summarily,  to  an  examination  concerning  property  alleged  to 
liave  been  transferred,  or  concealed,  fraudulently;  but  a  ple- 
nary suit  is  necessary  for  such  i:)uri)Ose,  wherein,  if  the  l)ank- 

(?i)t:i:u-k  &,  Bininger's  Cast-,  4  Ben.  {o)  FCfllcy's  Case,  ;5  Biss.  202. 

it?.  lj))Glaser's  Case,  2  Ben.  185. 


852  T^ANKUUPTCY. 

rupt  be  required  to  make  discovery,  or  be  examined  as  a 
witness,  he  will  receive  the  same  privileges  accorded  to  par- 
ties and  witnesses,  ordinarily. (^7) 

§  344.  Where  a  corporation  commits  an  act  of  bankruptcy^ 
and  continues  to  exist  at  the  time  the  petition  is  filed,  and 
the  papers  are  served,  it  cannot  oust  the  jurisdiction  of  the 
bankruptcy  court  by  securing,  before  the  return  day,  a  decree 
of  dissolution.  For  the  purposes  of  the  proceedings  it  will 
still  be  regarded  as  undissolved,  and  treated  accordingly.  A 
reason  given  for  this  is,  that,  if  such  a  course  deprived  the 
court  of  jurisdiction,  "this  would  be  to  concede  that  the  legis- 
lature of  a  state  might  lawfully  provide  by  a  statute,  to  be 
carried  into  effect  l)y  proceedings  in  its  courts,  that  the  insti- 
tution of  proceedings  in  bankruptcy,  and  the  service  of  an 
order  to  show  cause  upon  its  officers,  should  operate  to  dis- 
solve the  corporation,  to  be  followed,  as  a  consequence,  by  a 
defeat  of  the  jurisdiction  of  the  bankruptcy  court, "(r)  And 
the  appointment  of  a  receiver  for  a  corporation — for  example, 
a  fire  insurance  company — by  a  state  court,  is  an  act  of  bank- 
ruptcy, (s)* 

(g) Dale's  Case.  11  Blatch.  499.  the   bankruptcy  act  has  been  re- 

(?)Platt  V.  Archer,  9  Blatch.  569.  pealed,   yet   the   general  principles 

(s)Merchants'  Ins.  Co."s  Case,  3  have  been  treated  of,  with  regard 

Biss.  163.  to  the  late  law,  as  if  it  were  still  in 

*lt  will  be  observed  that  although  force. 


CLAIMS    AGAINST    XHi:    iJAXIONAL   GOVERNMENT. 


CHAPTEE  VII. 

CLAIMS    AGAINST    THE    NATIONAL    GOVERNMENT. 

§  345.  Suing  a  state  or  nation  in  its  own  courts. 

346.  Detinition  of  the  jurisdiction  by  the  statutes. 

347.  No  equitable  jurisdiction. 

348.  Character  in  which  the  United  States  are  sued. 

349.  Not  liable  for  torts  of  their  officers. 

350.  Revenue  laws  not  under  tliis  jurisdiction. 

351.  No  jurisdiction  where  state  a  party. 

352.  Loyalty  as  a  requisite  of  parties,  and  other  requisites. 

353.  Patents  not  cognizable. 

354.  Jurisdiction  only  extends  to  judgments  for  money. 

355.  Where  paymaster  has  had  fund  stolen. 

356.  Claims  arising  Under  treaty. 

357.  Reference  of  claim  to  commission — award. 

358.  Salvage  services. 

359.  Equitable  jurisdiction. 

360.  Reference  of  claim  by  officer. 

361.  Indian  supplies — quantum  meruit. 

362.  Loss  by  adoption  of  new  rules  of  inspection— jurisdiction  in  cases 

of  illegal  imprisonment. 

363.  3G4.  Military  damages  during  rebellion. 

365.  Abandoned  or  captui-ed  property. 

366.  Rebel  cannot  sue,  although  pardoned. 

367.  Liability  for  acts  of  executive  officers. 

368.  Of  prize  court  decisions. 

§  345.  It  has  been  heretofore  stated,  as  a  general  principle, 
that  a  state  or  nation  cannot,  ordinarily,  be  sued  in  its  own 
courts.  But,  by  the  establishment  of  the  court  of  claims,  this 
principle  has  been  so  far  abrogated,  that  a  new  party  defend- 
ant has  been  called  into  existence,  and,  when  a  petition  is 
presented  to  tlie  court,  the  United  States  occupy  the  position 
of  an  ordinary  defendant  in  a  suit  at  law. (a.)  The  duties  of 
the  court  are  not  merely  advisory,  or  its  decisions  recommend- 
atory, but  its  qualities  are  only  those  which  properly  belong 

(a)Todd  ».  United  States,  Dev.  Ct.  CI.  120. 
v.l— 23 


354.      CLAIMS  AGAINST  THE  NATIONAL  GOVERNMENT. 

to  a  court  wliich  can  only  adjudge  whether  its  jurisdiction  be 
Ijual  or  not;  for,  in  establishing  the  court,  congress  had  no 
intention  merely  to  constitute  a  council  to  advise  what  course 
it  would  be  honest  and  right,  or  expedient,  to  pursue,  in  any 
given  case,  but  intended  to  establish  a  court  for  the  investi- 
gation of  claims,  to  ascertain  the  facts  in  each  case,  and  the 
legal  rights  and  liabilities  therefrom  arising.  Nor  does  the 
court  occupy  the  position  of  a  jury,  although,  to  a  certain 
extent,  it  unavoidably  determines  questions  of  fact,  and  thus 
evercises  the  functions  of  a  jury  measurably.  It  is  held, 
however,  that  it  posseses  no  portion  of  the  wide  discretion 
which,  according  to  some  of  the  cases  at  common  law,  juries 
may  often  exercise. 

Nor  is  it  the  duty  of  the  court  to  recommend  to  congress 
the  passage  of  laws  to  supply  any  deficiency  which  may  be 
supposed  to  exist. 

If  a  claim  be  alleged  to  be  founded  upon  any  law  of  con- 
gress, the  court  will  construe  such  law,  and  ascertain  its 
meaning,  by  means  of  the  well-established  rules  of  construc- 
tion; and  so,  if  the  claim  is  founded  upon  any  regulation  of 
an  executive  department,  or  upon  a  contract  with  the  govern- 
ment; or  if  the  claim  be  one  referred  to  it  by  either  house  of 
congress,  (b) 

§  346.  The  statute  establishing  the  court,  in  1855,  thus 
defined  its  jurisdiction :  "The  said  court  shall  hear  and  deter- 
mine all  claims  founded  upon  any  law  of  congress,  or  upon 
any  regulation  of  an  executive  department,  or  upon  any  con- 
tract, express  or  implied,*  with  the  government  of  the  United 
States,  which   may  be    suggested    to   it  by  a  petition  filed 

(^)lbid,  106,  107.  or  they  must  li.-ive  received  money 
And  where  a  special  private  act  witii  a  charge  to  pay  it  over,  or  the 
refers  a  particular  claim,  it  shoiild  claimant  must  have  a  lawful  right 
not  be  construed  to  re-open  claims  to  it  when  it  w^as  received,  as  in  the 
already  passed  upon,  but  as  intended  case  of  money  paid  by  mistake, 
to  supply  a  defect  of  previous  juris-  And,  as  to  money  paid  into  the 
diction.  Harvey  v.  U.  S.  12  C.  of  treasury,  as  the  proceeds  of  for- 
C  141.  feited  property  under  the  confisca- 
*As  to  implied  contracts,  there  tion  act,  there  is  no  implied  con- 
must  have  been  some  considera-  tract.  Knote  «.  U.  S.  95  U.  S  .14!). 
tion  moving  to  the  United  States, 


CLAIMS    AGAINST    TIIK    NATIONAL    GOVERNMENT.  355 

tlicvcin;  find,  also,  all  claims  which  may  be  referred  to  said 
court  by  either  bouse  of  congress.  It  shall  be  the  duty  of 
the  claimants,  in  all  cases,  to  set  forth  a  full  statement  of 
the  claim,  and  of  the  action  thereon  in  congress,  or  by  .anj'  of 
the  departments,  if  such  action, has  been  had,  specifying,  also, 
what  person  or  persons  are  owners  thereof,  or  interested 
therein;  and  when,  and  upon  what  consideration,  such  per- 
son or  persons  became  so  interested. "(c) 

In  ISOo  another  act  enlarged  this  jurisdiction  thus:  "All 
petitions  and  bills  praj'ing  or  providing  for  the  satisfaction  of 
private  claims  against  the  government,  founded  upon  any  law 
of  congress,  or  upon  any  regulation  of  an  executive  depart- 
ment, or  uj)on  any  contract,  express  or  implied,  with  the  gov- 
ernment of  the  United  States,  shall,  unless  otherwise  ordered 
by  resolution  of  the  house  in  which  the  same  were  presented 
or  introduced,  be  transmitted  by  the  secretary  of  the  senate, 
or  clerk  of  the  house  of  representatives,  with  all  the  accom- 
panying documents,  to  the  court  afiu'csaid.  The  said  court, 
in  addition  to  the  jurisdiction  now  conferred  by  law,  shall  also 
have  jurisdiction  of  all  set-offs,  counter  claims,  claims  for 
damages,  W'hether  liquidated  or  unliquidated,  or  other  demands 
whatsoever  on  the  part  of  the  government  against  any  person 
making  claim  against  the  government  in  said  court;  and, 
upon  the  trial  of  any  such  cause,  it  shall  hear  and  determine 
such  claim  or  demand,  both  for  and  against  the  government 
and  claimant;  and  if,  upon  the  whole  case,  it  finds  that  the 
claimant  is  indebted  to  the  government,  it  shall  render  judg- 
ment to  that  effect,  and  such  judgment  shall  be  final,  wdth  the 
right  to  appeal,  as  in  other  cases  herein  provided  for.  Any 
transcript  of  such  judgment,  filed  in  the  clerk's  office  of  any 
district  or  circuit  court  of  the  United  States,  shall  be  entered 
on  the  records  of  the  same,  and  shall  ipso  facto  become  and 
be  a  judgment  of  such  district  or  circuit  court,  and  shall  be 
enforced  in  like  manner  as  other  judgments  theYem."(d) 

Also,  in  the  act  of  18(;»4,  the  following  restriction  was  im- 
posed:    "The  jurisdiction  of  the  court  of  claims  shall   not 
extend  to,  or  include,  any  claim  against  the  United  States 
(f)]}riglitly'.s  Dig.  1789,  1857,  p.  W8.         {'IjUnd,  1857,  isGO,  pp.  1)7,  98. 


3o6      CLAIMS  AGAINST  THE  NATIONAL  GOVERNMENT. 

growing  out  of  the  destruction,  or  appropriation  of,  or  dam- 
age to,  property,  by  the  army  or  navy,  or  any  part  of  the  army 
or  navy  engaged  in  the  suppression  of  the  rebellion,  from  the 
commencement  to  the  close  thereof. "(e) 

In  1803  an  act  was  passed  concerning  captured  and  aban- 
doned property,  excepting  strictly  warlike  materials,  provid- 
ing for  the  sales  of  such  property,  and  the  paj^ment  of  the 
proceeds  into  the  national  treasury,  and  then  giving  to  the 
court  of  claims  jurisdiction  over  these  proceeds,  namely  :  "Any 
person  claiming  to  have  been  the  owner  of  any  such  abandoned 
or  captured  property  may,  at  anj^  time  within  two  years  after 
the  suppression  of  the  rebellion,  prefer  his  claim  to  the  pro- 
ceeds thereof  to  the  court  of  claims;  and  on  proof,  to  the  sat- 
isfaction of  the  said  court,  of  his  ownership  of  said  property,  of 
his  right  to  the  proceeds  thereof,  and  that  he  has  never  given 
any  aid  or  comfort  to  the  present  rel)ellion,  to  receive  the 
residue  of  such  proceeds,  after  the  deduction  of  any  purchase 
money  which  may  have  been  paid,  together  with  the  expense 
of  transportation  and  sale  of  said  j^roperty,  and  any  other 
lawful  expenses  attending  the  disposition  thereof, "(/) 

Also  the  following  restriction  was  imposed,  in  1863 :  "The 
jurisdiction  of  the  said  court  shall  not  extend  to  or  include 
any  claim  against  the  government  not  pending  in  said  court 
on  the  first  day  of  December,  A.  D.  18(32,  growing  out  of,  or 
dependent  on,  any  treaty  stipulation  entered  into  with  for- 
eign nations,  or  with  the  Indian  tribes. "((/) 

An  extension  of  the  jurisdiction  was  made  in  1807,  to 
cover  quartermaster's  stores  furnished  during  tlie  Morgan 
raid  through  Indiana  and  Ohio.(/?) 

§  347.  It  is  held  that  the  jurisdiction  of  the  court  is  strictly 
legal,  and,  therefore,  it  cannot  enforce  a  trust  against  the  United 
States,  or  exercise  any  equitable  powers  whatever ;  so  that 
the  holder  of  a  military  bounty  land  warrant  cannot  have  a 

(e)Ibid,  p.  99.  tion  assumed   by  the  government, 

(/)lbid,  (supp.)  p.  1239.  for  Indian  tribes,  by  treatj-.     Lang- 

(g)lh\d,  (supp.)  p.  1159.  ford  «.  U.  S.  12  C.  of  C.  328. 

And  so,  the  court  of  claims  has  (A) United  states  6tat.  at   Large, 

no  jurisdiction  to  enforce  an  obliga-  (14,)  p.  572, 


CLAIMS    AGAINST    THE    NATIONAL    GOVERNMENT.  357 

legal  right  to  claim,  through  that  court,  a  compensation  from 
the  United  States  on  the  ground  that  the  government  has 
wrongfullj'  appropriated  the  lands,  ceded  for  his  benefit,  to 
other  uses.  The  supreme  court  sa}-,  in  a  case  of  this  kind : 
"This  claim  is  based  on  the  theory  that  the  United  States  has 
violated  the  trust  contained  in  the  deed  of  cession  of  the 
north-western  territory,  and  is  bound,  in  good  conscience,  to 
furnish  compensation  to  the  Virginia  beneficiaries  who  sufl^er 
by  this  misconduct.  This  makes  a  case  for  the  interposition 
of  a  court  of  equity  ;  and,  if  it  were  a  controversy  between  two 
private  suitors,  it  would  have  to  be  settled  there,  for  a  court 
of  law  could  not  afford  the  proper  mode  and  measure  of  relief. 
But  the  court  of  claims  has  no  equitable  jurisdiction  given  it, 
and  was  not  created  to  inquire  into  rights  in  equit}',  set  up  by 
claimants  against  the  United  States.  Congress  did  not  think 
proper  to  part  with  the  consideration  of  such  questions,  but 
wisely  reserved  to  itself  the  power  to  dispose  of  them.  Im- 
munity from  suit  is  an  incident  of  sovereignty.  But  the  gov- 
ernment of  the  United  States,  in  a  spirit  of  great  liberality, 
waived  that  immunity  in  favor  of  those  persons  who  had 
claims  ngainst  it,  which  were  founded  on  any  law  of  congress, 
or  regulation  of  an  executive  department,  or  upon  any  con- 
tract with  it,  express  or  implied,  and  gave  the  court  of 
claims  the  power  to  hear  and  determine  claims  of  this  nature. 
*  *  *  That  court  was  authorized  to  enforce  legal  rights 
and  obligations,  but  could  not  proceed  further  and  judge  of 
the  equities  between  the  citizen  and  his  government.  *  *  * 
It  is  only  a  contract  autliorized  by  law  that  the  court  of 
claims  can  consider;  and,  as  there  is  no  law  of  congress  on 
this  subject,  there  is  nothing  on  which  that  court  could  base 
a  jud;:;raent  against  the  United  States,  if,  in  the  opinion  of 
that  tribunal,  it  had  not  fulfilled  its  duties  toward  the  ben- 
eficiaries under  the  Virginia  deed  of  cession.  Tiie  liability 
of  the  government,  if  at  all,  [existing,]  arises  out  of  the  breach 
of  an  accepted  trust,  and  that  liability  cannot  be  enforced  at 
law.  The  claimant  is  in  no  better  position  because  the  gov- 
ernment is  the  trustee  than  he  would  be  if  a  private  person 
occupied  that  relation,  and  it  is  very  clear,  if  such  were  the 


358  CLAIMS    AGAINST    THE    NATIONAL    GOVERNMENT. 

« 

case,  that  a  court  of  equity  would  alone  have  power  to  deal 
with  him.  As  the  government  has  not  thought  fit  to  allow 
itself  to  be  sued  in  the  court  of  claims,  on  equitable  consid- 
erations, it  follows  that  the  remedy  of  the  claimant,  if  any 
now  exists,  is  with  congress. "(i) 

§  34S.  It  is,  moreover,  held  that  a  distinction  is  to  be  care- 
fully maintained  between  the  United  States  as  a  sovereign^ 
and  the  United  States  as  a  contractor.  In  the  former  capac- 
ity the  government  is  not  amenable  to  any  court,  and  in  the 
latter  capacity  it  holds  the  relation  simply  of  an  ordinary 
private  defendant.  So  tlie  court  says,  in  regard  to  this  some- 
what metaphjsical  distinction :  "In  the  recent  case  of  Dcmlng 
V.  The  United  States  this  court  decided  that  a  contract  be- 
tween the  government  and  an  individual  cannot  be  affected, 
especially  by  a  general  law.  That  prinei])le  we  now  reiterate^ 
and  extend  to  the  case  l)efore  us.  The  '  obstructions  and 
hindrances'  complained  of  on  the  jiart  of  the  United  States 
were  the  withdrawal  of  the  troops  from  the  military  posts  in 
the  Indian  country,  contrary  to  the  terms  of  the  Indian  trea- 
ties, and  it  is  insisted,  'as  a  matter  of  law,'  that  'the  United 
States  could  not  change  their  attitude,  or  their  policy,  in  a 
material  degree,  without  incurring  the  responsibility  of  mak- 
ing the  claimants  just  compensation  for  all  additional  ex- 
penses thereby  incurred?'  This  position  cannot  be  sustained. 
The  two  characters  which  the  government  possesses,  as  a 
contractor  and  as  a  sovereign,  cannot  be  thus  fused.  Nor  can 
the  United  States,  while  sued  in  the  one  character,  be  made 
liable  in  damages  for  acts  done  in  the  other.  Whatever  acts 
the  government  may  do,  be  they  legislative  or  executive,  so 
long  as  they  are  public  and  general,  cannot  be  deemed  spe- 
cially to  alter,  modif}',  obstruct,  or  violate  the  particular 
contracts  into  which  it  enters  with  private  persons.  The  laws 
of  taxes  and  imposts  affect  pre-existent  executory  contracts 
between  individuals,  and  affect  those  made  with  the  govern- 
ment, but  only  to  the  same  extent  and  in  the  same  way.  In 
this  court  the  United  States  appear  simply  as  a  contractor, 
and  are  to  be  held  liable  only  in  the  same  limits  that  any 
(i)Boimer  v.  United  Stales,  'J  \\'d\\.  50-Gl,  jms^im. 


I 


CLAIMS  AGAINST  THE  NATIONAL  GOVERNMENT.      359 

other  defendant  would  be  in  any  other  court;  though  their 
sovereign  acts,  performed  for  the  general  good,  may  work 
injury  to  some  private  contractors,  such  parties  gain  nothing 
by  having  the  United  States  as  their  defendant.  Wherever 
the  public  and  private  acts  of  the  government  seem  to  com- 
mingle, a  citizen  or  corporate  body  must,  by  supposition,  he 
substituted  in  its  place,  and  then  the  question  be  determined 
whether  the  action  will  lie  against  the  supposed  defendant. 
If  the  enactment  of  a  law  imposing  duties  will  enable  the 
claimant  to  increase  the  stipulated  price  of  goods  he  has  sold 
to  a  citizen,  then  it  will  when  the  United  States  are  defend- 
ants, but  not  otherwise.  If  the  removal  of  troops  from  a 
district  liable  to  invasion  will  give  the  claimant  damages  for 
unforeseen  expenses  when  the  other  party  is  a  corporate 
body,  then  it  will  when  the  United  States  form  a  party,  but 
not  otherwise.  This  distinction  between  the  public  acts  and 
private  contracts  of  the  government,  not  always  strictly  in- 
sisted on  in  the  earlier  days  of  this  court,  frequently  misap- 
prehended in  public  bodies,  and  constantly  lost  sight  of  by 
suitors  who  come  before  us,  we  now  desire  to  make  so  broad 
and  distinct  that  hereafter  the  two  cannot  be  confounded. 
And  we  repeat,  as  a  principle  apj)licable  to  all  cases,  that  the 
United  States  as  a  contractor  cannot  be  held  liable,  directly 
or  indirectly,  for  the  public  acts  of  the  United  States  as  a 
sovereign. "(.;) 

§  349.  Nor  can  the  government  be  held  liable  for  the  torts 
of  its  officers,  even  though  resulting  in  the  benefit  of  the 
government.  Concerning  this  the  suj^reme  court  say:  "It  is 
not  to  be  disguised  that  this  case  is  an  attempt,  under  the 
assumption  of  an  implied  contract,  to  make  the  government 
responsible  for  the  unauthorized  acts  of  its  officer;  those 
acts  being  in  themselves  torts.  No  government  has  ever  held 
itself  liable  to  individuals  for  the  misfeasance,  laches,  or  unau- 
thorized exercise  of  power  by  any  of  its  officers  and  agents." 
In  the  language  of  Judge  Story,  (on  x\gencies,  §  319:)  "It 
does  not  undertake  to  guaranty  to  any  person  the  fidelity  of 
any  of  the  officers,  or  agents,  whom  it  employs,  since  that 
(j)Jones  V.  Uoitcd  SUites.  JS'aU  &  Hunt.  Ct.  CI.  384. 


800      CLAIMS  AGAINST  THE  NATIONAL  GOVERNMENT. 

would  involve  it,  in  all  its  operations,  in  endless  embarrass- 
ments, and  difficuties,  and  losses,  which  would  be  subversive 
of  the  public  interests."  U.  S.  v.  Kirkpatrick,  9  Wheat.  720; 
Do.v  V.  Postmaster  General,  1  Pet.  318;  Connell  v.  Voorhes,  13 
Ohio,  523. 

"The  creation,  by  act  of  congress,  of  a  court  in  which  the 
United  States  may  be  sued,  presents  a  novel  feature  in  our 
jurisprudence,  though  the  act  limits  the  suits  to  claims 
founded  on  contracts,  express  or  implied,  with  certain  im- 
portant exceptions.  But,  in  the  exercise  of  this  unaccustomed 
jurisdiction,  the  courts  are  embarrassed  by  the  necessary 
absence  of  precedents  and  settled  principles,  by  which  the 
liability  of  the  government  may  be  determined.  In  a  few 
adjudged  cases,  where  the  United  States  were  plaintiff,  the 
defendants  have  been  permitted  to  assert  demands  of  various 
kinds,  by  way  of  set-otf,  and  these  cases  may  afford  useful 
guidance  where  they  are  in  point.  Cases  of  U.  S.  v.  Kirk- 
patrick, 9  Wheat.  720,  and  Dox  v.  Postmaster  General,  1  Pet. 
318,  are  of  this  class,  and  establish  the  principle  that,  even 
in  regard  to  matters  connected  with  the  cause  of  action  relied 
on  by  the  United  States,  the  government  is  not  responsible 
for  the  laches,  however  gross,  of  its  officers.  Nichols  v.  U.  S. 
7  Wall.  122. 

"The  language  of  the  statutes  which  conferred  jurisdiction 
upon  the  court  of  claims  excludes,  b}'  the  strongest  implica- 
tion, demands  against  the  government  founded  on  torts.  The 
general  principle  which  we  have  already  stated  as  applicable 
to  all  governments,  forbids,  on  a  policy  imjjosed  by  necessit}^ 
that  they  should  hold  themselves  liable  for  unauthorized 
wrongs  inflicted  by  their  officers  on  the  citizen,  though  occur- 
ring while  engaged  in  the  discharge  of  official  duties.  [Yet, 
where  a  court  without  jurisdiction  has  assessed  a  fine,  and 
government  has  taken  the  money  therefor,  an  action  may  be 
brought  in  the  court  of  claims  to  recover  it  back.  Devlin  v. 
U.  S.  12  C.  of  C.  266.  And  so,  where  money  is  deposited 
with  a  collector  of  internal  revenue,  to  be  applied  to  a  pro- 
posed compromise  of  revenue  demands,  against  the  depositor, 
and  the  pioposition  of  compromise  is  rejected  by  the  govern- 


CLAIMS    AGAINST    THE    NATIONAL    GOVERNMENT.  SC)1 

ment,  and  the  collector  afterwards  applies  the  money  to  an 
assessment  for  taxes  and  penalties  against  the  depositor,  and 
pays  the  money  thereon  into  the  treasury,  an  action  may  be 
brought  in  the  court  of  claims  to  recover  it  back.  Browjldon 
y.  U.S.  12  C.  of  C.  -331.  And  where  money  is  exacted  by  an 
agent  or  officer  of  the  United  States,  which  goes  into  the 
treasury,  the  money  can  be  recovered  back  by  an  action  in 
the  court  of  claims — the  owner  having  a  right  to  follow  it 
wherever  it  can  be  traced.  U.  S.  v.  State  Bank,  96  U.  S.  33. 
And  so  an  excess  of  income  tax  may  be  recovered  in  like  man- 
ner.     U.  S.  V.  Kaufman,  96  U.  S.  567.] 

"In  the  absence  of  adjudged  cases  determining  how  far  the 
government  may  be  responsible,  on  an  implied  assumpsit,  for 
acts  which,  though  unauthorized,  may  have  been  done  in  its 
interest,  and  of  which  it  may  have  received  the  benefit,  the 
apparent  hardships  of  many  such  cases  present  strong  appeals 
to  the  courts  to  indemnify  the  suffering  individual  at  the  ex- 
pense of  the  United  States.  These  reflections  admonish  us 
to  be  cautious  that  we  do  not  permit  the  decisions  of  this 
court  to  become  an  authority  for  the  righting,  in  the  court  of 
claims,  of  all  wrongs  done  to  individuals  by  the  officers  of  the 
general  government,  though  they  may  have  been  committed 
while  serving  that  government,  and  in  the  belief  that  it  v.as 
for  its  interest.  In  such  cases,  where  it  is  proper  for  the 
nation  to  fnrnish  a  remedy,  congress  has  wisely  reserved  the 
matter  for  its  own  determination.  It  certainly  has  not  con- 
ferred it  on  the  court  of  claims. "(/c) 

Accordingly,  where  a  petitioner,  not  professing  to  seek  re- 
lief under  the  "abandoned  or  captured  property  act,"  alleged 
that  in  1862  "the  United  States  illegally,  violently,  and  for- 
cibly took  possession"  of  his  plantation,  in  Louisiana,  "and 
continued  to  hold  possession  thereof,  until  January,  1866,  on 
the  false  and  illegal  pretext  that  the  property  was  abandoned 
by  the  owner,"  it  was  held  to  fall  within  the  principle  of  the 
Common  law,  "that  the  government  cannot  be  sued  inactions 
sounding  in  tort,  nor  made  liable  for  the  tortious  acts  of  its 
officers,"  since  the  allegations  did  not  raise  an  implied  con- 
(A)aibbuus  t).  United  states.  8  Wall.  274. 


362  CLAIMS    AGAINST    THE    NATIONAL    GOVERNMENT. 

tract,  but  merely  amounted  to  a  declaration  in  trespass  quart 
clans uin /regit  against  the  government.  Nevertheless,  in  that 
case,  two  of  the  judges  dissented,  on  the  ground  that  the 
petition  alleged  that  the  owner  had  never  been  disloyal,  and 
had  never  abandoned  his  property,  and  that  the  United  States 
rented  it  and  received  the  proceeds — the  action  being  thus 
based  on  this  use,  and  not  merely  on  the  tortious  seizure  by 
the  agents  of  the  government.  And  the  dissenting  judges 
held  that  the  claimant  was  under  no  obligation  to  aver,  or 
prove,  that  the  rents  ever  were  paid  over  into  the  national 
treasury  ;  for,  said  they :  "This  is  not  the  ground,  but  that  the 
government,  without  any  right  or  authority,  took  and  used  or 
sold  his  property;  that  the  persons  by  w4iom  it  was  done 
were  the  accredited  officers  and  agents  of  the  United  States, 
over  whom  the  claimant  could  exercise  no  influence  or  con- 
trol ;  but  who  were  amenable  to  the  orders  and  responsible  to 
the  government  alone."  Again:  "The  law  gives  the  aclion 
to  the  owner,  because  the  United  States,  through  its  i^roper 
and  legitimate  officer,  received  the  proceeds.  The  law  gave 
the  right  to  the  treasury  agent  to  receive  these  proceeds ;  and 
wdien  they  were  received  by  him,  thoy  were  as  much  received 
by  the  United  States  as  if  they  had  been  paid  over  to  the 
treasurer  of  the  United  States  and  by  him  placed  in  his  vault. 
And  when  they  were  so  received  by  him,  they  were  received 
by  the  United  States,  and  all  their  legal  liabilities  followed. 
His  property  was  taken  from  him  forcibly,  not  voluntarily 
handed  over.  He  had  no  right,  or  means,  to  compel  the 
agent  to  perform  his  duty,  nor  call  him  to  account  for  the 
proceeds,  in  any  way.  He  could  not  sue  the  agent  in  any 
form,  nor  could  he  bring  suit  against  any  other  party  than 
the  United  States,  and  that  in  the  court  of  claims.  "(Z) 

§  .350.  Cases  arising  under  the  revenue  laws  are  not  imme- 
diately within  the  jurisdiction  of  the  court  of  claims.  This  is 
placed,  by  the  supreme  court,  upon  the  ground  that  "the  prompt 
collection  of  the  revenue,  and  its  faithful  application,  is  one  of 
the  most  vital  duties  of  government.  Depending,  as  the  gov- 
ernment does,  on  its  revenue,  to  meet,  not  only  its  current  ex- 

{Z)Pugli  V.  United  States,  5  Ct.  CI.  114. 


CLAIMS  AGAINST  THE  NATIONAL  GOVERNMENT.      3G3 

penses,  but  to  pay  the  interest  on  its  debts,  it  is  of  the  utmost 
importance  that  it  should  be  collected  with  dispatch,  and  that 
the  officers  of  the  treasury  should  be  able  to  make  a  reliable 
estimate  of  means  in  order  to  meet  liabilities.  It  would 
be  difficult  to  do  this,  if  receipts  from  duties  and  internal 
taxes  paid  into  the  treasury  were  liable  to  be  taken  out  of  it^ 
or  suits  prosecuted  in  the  court  of  claims,  for  alleged  errors 
and  mistakes,  concerning  which  the  officers  charged  with  the 
collection  and  disbursement  of  the  revenue  had  received  no- 
information.  Such  a  policy  would  be  disastrous  to  the 
finances  of  the  country ;  for,  as  there  is  no  statute  of  limita- 
tions to  bar  these  suits,  it  would  be  impossible  to  tell,  in 
advance,  how  much  money  would  be  required  to  pay  the  judg- 
ments obtained  on  them,  and  the  result  would  be  that  the 
treasury  estimates  for  any  t-urrent  year  would  be  unrelia- 
ble, "(w) 

And,  accordingly,  even  a  set-off,  by  the  United  States,  of 
an  income  tax  on  an  officer's  pay,  for  which  the  officer  has 
sued,  cannot  be  allowed;  on  the  ground  that  congress  has 
never  assigned  the  collection  of  income  taxe^  to  the  court  of 
claims. (;t)      Thus,   where  claimants,  on  importing  iron  and 

(m.)Xichols    v.    Unitctl    States,    7  on  a  statement  of  facts,  to  have  the 

Wall.  129.  court   determine   the   ([uestions  of 

The  principle  is,  that  when  a  con-  law  involved.    2.  Where  the  law  de- 

troversy  under  the  revenue  laws  is,  clares  a  person  entitled  to  money  on 

by  law,  required  to  he  determined  doing  a  certain  act,  so  that  the  right 

by  other  officers,  or  other  tribunals,  to  it  does  not  depend  on  the  action 

there  is  no  jurisdiction  in  the  court  of  any  executive  otiicer,  but  iscom- 

of  claims;  but  if  the  proper  otticer  plele  upon  the  performance  of  the 

has  acted  upon  a  matter,  and  has  conditions.     3.   Where    a   claim   is 

tiled    a    certificate,    and    thus    ex-  dependent  on    executive   decision, 

hausted   his   jurisdiction,  and   the  and  this  has  been  rendered  in  the 

treasurer  has  failed  to  carry  out  the  party's  favor.     But  the  court  has 

award    by    making    payment,   the  not  juri.'^diction,  under  the  revenue 

court   of    claims    can   enforce    the  laws,  as  follows :     AVhere  the  right 

payment.     11   C.  of   C.  65!).     And  of  a  i)arty  depends  on  an  executive 

so,  this   court   has   jurisdiction  in  acticm  which  has  not  been  taken,  or 

some  cases  arising  under  the  reve-  has    resulted    against    the     party, 

nue  laws,  namely:     1.   Where  the  Campbell  u.  U.  S.  C.  of  C.  471*. 

secretary  of    the    treasury   (under  (M).Iones  «.  United  States,  4  Cl.  CI. 

llev.  St.  J  1063)  transmits  a  claim  207. 
which  arose  under  the  revenue  laws. 


3G4      CLAIMS  AGAINST  THE  NATIONAL  GOVERNMENT. 

steel  into  the  United  States,  had  paid  an  illegal  sum  of  duties, 
which  was  paid  into  the  national  treasury,  without  protest,  it 
was  held  that  the  court  of  claims  had  no  jurisdiction  to  cause 
the  excess  to  be  refunded,  on  the  ground  of  an  implied  prom- 
ise to  repay  money  erroneously  exacted,  because,  (1)  there 
was  no  protest,  as  required  by  the  act  of  February  26,  1845 ; 
(2)  the  payment  was  made  and  received  under  a  mutual  mis- 
take, and  was,  therefore,  a  voluntary  mistake,  and  as  such 
irrecoverable. (o)  And  so,  the. court  will  not  entertain  juris- 
diction of  an  action  brought  to  recover  a  drawback  under  the 
internal  revenue  act  of  June  80,  1864,  (13  U.  S.  Laws,  223, 
§  71,)  on  manufactured  articles  exported  from  the  United 
States,  on  which  an  internal  revenue  tax  has  been  paid.(/)) 
The  principle  extends  to''cases  where  goods  lay  in  bond  three 
years,  and  are  then  sold  for  non-payment  of  duties,  and  the 
officer  takes,  not  the  duties  imposed  at  the  time  of  importa- 
tion, but  those  imposed  by  subsequent  statutes  on  similar 
goods.  ((/) 

§  351.  The  court  of  claims  hars  no  jurisdiction  where  a  state 
is  a  necessary  jmrty  to  the  proceedings,  nor  where  the  govern- 
ment has  aided  the  state  in  the  wrongful  diversion  of  the  pro- 
ceeds of  lands  appropriated  to  a  particular  purpose. (?•) 

§  352.  As  to  the  parties  who  may  sue  in  the  court  of  claims^ 
we  mention — (1)  Loyal  citizens.  By  the  act  of  June  25, 
1868,  all  claimants  against  the  United  States,  who  have  vol- 
untarily resided  within  the  seceded  states  during  the  war, 
must  prove  their  loyalty  affirmatively,  the  presumption  being 
against  them,  and  thus  throwing  the  burden  of  proof  on 
them.  And  where  one  comes  before  the  court  whose  neigh- 
bors speak  doubtfully  of  him,  and  whose  household  servants 
are  silent  when  adduced  as  witnesses,  he  is  at  best  to  be  re- 
garded as  a  neutral,  and  has  no  standing  in  the  court  of 
claims,  (s)     Where  an  administrator  sues,  the  loyalty  of  the 

(o)Schlesinger  v.  United  States,  1  (gjDolierty  «.  United  States,  6  C. 

C.  of  C.  27.  of  C.  90. 

(p)Portland  Co.  v.  United  States,  (r)Milwaukee,  etc.,  Canal  Co.   «. 

5  C.  of  C.  442.  United  States,  1  C.  of  C.  187. 

fs)Zellner  v.  United  States,  4  0.  of  C.  480. 


CLAIMS    AGAINST    THE    NATIONAL   GOVERNMENT.  365 

intestate  must  in  like  manner  be  satisfactorily  proved. (?)  It 
seems,  however,  if  one,  at  an  early  period  of  the  war,  de- 
serted the  rebel  cause,  and  remained  thereafter  loyal,  he  has 
a  standing  in  the  court,  (m)  And  where  there  are  joint 
claims,  and  one  of  the  owners  became  disloyal  and  the 
other  remained  loyal,  the  latter  has  a  right  to  sue  for  his 
moiety,  although  the  former  lost  all  his  rights  by  his  disloy- 
alty.(r)  Where  a  citizen  of  Kansas,  just  before  the  war 
began,  took  horses  to  Mobile,  and,  failing  to  sell  them  be- 
fore the  war  broke  out,  remained  to  dispose  of  them,  and 
afterwards  was  restrained  from  returning  by  the  confederate 
authorities,  and  sold  his  horses  and  invested  the  proceeds  in 
cotton,  continuing  loyal  throughout  the  war,  it  was  held  that 
he  had  not  thus  given  aid  and  comfort  to  the  rebellion,  and 
that,  as  he  and  his  father  were  residents  of  a  loyal  state,  the 
legal  presumption  was  in  favor  of  their  loyalty,  and  he  was 
virtually  a  prisoner  in  the  south,  and  carried  on  no  illicit 
trade  with  the  enemy ;  he  had  a  right  to  invest  the  confeder- 
ate money,  which  was  all  he  could  get  for  the  horses,  in  some- 
thing of  permanent  value,  namely,  the  cotton  afterwards 
taken  by  the  government.  But  Nott,  J.,  vigorously  dissented, 
and  said:  "The  claimant's  intestate,  on  whose  loyalty  the 
case  depends,  went  into  a  country  threatening  to  rebel,  and 
voluntarily  remained  after  civil  war  had  broken  out.  He 
made  no  attempt  to  return  to  his  residence  in  the  loyal  states 
until  July,  1861.  The  purpose  for  which  he  remained  was 
merely  to  procure  better  prices  for  his  horses.  It  does  not 
excuse  the  act.  The  case  comes  within  the  decision  in  the 
case  of  The  William  Bagaleij,  5  Wall.  pp.  377,  408,  where 
Mr.  Justice  Clifford  well  defines  the  duty  of  a  citizen  when  a 
war  breaks  out :  'If  it  be  a  foreign  war,  and  he  is  abroad,  he 
is  to  return  without  delay;  and  if  it  be  a  civil  war,  and  he  is 
a  resident  in  the  rebellious  section,  he  should  leave  it  as  soon 
as  practicable,  and  adhere  to  the  established  government.'  ''{w) 

(<)Dc'osoQ  ».  United  States,  5  C.  of  (f))Unlted     Slates    «.    Burns,    12 

C.  620.  Wall.  24(i. 

(m)CuHUou  «.  United  States,  5  C.  (/rjFoster  v.  United  States,  5  C.  of 

of  C.  627.  ^  ^^^- 


306  CLAIMS    AGAINST    THE    NATIONAL    GOVERNMENT. 

(2.)  A  naturalized  citizen,  if  loyal,  may  sue  in  the  court  of 
<;laims,  even  if  the  claim  arose  before  his  naturalization,  and 
bis  naturalization  was  not  perfected  before  the  commence- 
ment of  his  suit.(.r) 

(3.)  Citizens  of  countries  which  allow  our  citizens  to  prose- 
cute claims  against  their  governments  in  their  courts  are 
allowed  to  prosecute,  in  the  court  of  claims,  actions  against 
the  United  States;  as  Great  Britain, (//)  Prussia, (3')  Switzer- 
land, (a)  France, (/>)  and  Spain,  (c)  Cotton  owned  by  a  British 
subject,  although  he  never  came  to  this  country,  was,  if 
found  within  the  confederate  territory  during  the  rebellion,  a 
legitimate  subject  of  capture.  But  if  he  had  not  aided  the 
rebellion  he  could  sue  (under  act  of  March  12,  1863)  in  the 
court  of  claims  to  recover  the  proceed's  thereof  from  the  treas- 
ury. But  if  he  aided  the  rebellion  in  any  way  he  can  have 
no  standing  in  the  court.     Young  v.  U.  S.  97  U.  S.  39. 

(4.)  An  officer  formerly  in  the  navy  of  the  republic  of 
Texas  can  sue  for  his  compensation  as  such  in  the  court  of 
claims,  (fi) 

§  353.  Infringements  of  patent  rights  by  officers  of  the 
United  States  are  not  cognizable  in  the  court  of  claims. (e) 
But  the  court  has  jurisdiction  in  a  claim  for  royalty  under  a 
contract  for  the  use  of  a  patent. (/) 

§  354.  The  jurisdiction  of  the  court  extends  only  to  judg- 
ments for  money,  and  it  has  no  jurisdiction  to  establish  the 
right  of  a  claimant  to  have  a  land- warrant  issued  to  him.(g) 

§  355.  The  court  may  give  relief  where  a  paymaster  has 
had  his  funds  stolen  from  him  when  in  the  exercise  of  ordi- 
nary care,  the  ground  of  which  is  thus  explained:  "The  law 
under  which  this  court  takes  jurisdiction  of  cases  like  this 
presumes  that  disbursing  officers  may  meet  with  losses  with- 
out fault  or  neglect  on  their  parts,  and  under  circumstances 

(a;)Bul\vinkle  ©.United  States,  4  (djKothscliild's  Case,  6  C.  of  C. 
C.  of  C.  ;j;i5.                                                204. 

(//jUnited   States    v.    O'Keith,  11  (r)Molina"s  Case,  6  C.  of  C.  2G9. 

"Wall.  178.  (fZ)Moore's  Case,  4  C.  of  C.  139. 

(j)Bro\vn  v.  United  States,  5  C.  of  (t')Fitcher's  Case,  1  0.  of  C.  7. 

C  571.  (/) Burns'  Case,  4  C.  of  C.  113. 

(a)Lobsiger's  Case,  5  C.  of  C.  687.  (i^)Alire's  Case,  3  C.  of  C.  447. 


CLAIMS  AGAINST  THE  NATIONAL  GOVERNMENT.      867 

•which  will  excuse  them  from  the  increasing  exercise  of  the 
utmost  possible  vigilance ;  for,  with  that,  it  would  rarely  hap- 
pen that  a  loss  would  occur.  The  utmost  possible  vigilance 
might  require  of  an  officer  that  he  should  keep  his  hand  upon 
bis  treasure  at  all  times;  then  loss  of  treasure  would  only 
happen  with  loss  of  life,  or  overpowering  force.  But  a  per- 
son may  be  without  fault  or  neglect  without  the  use  of  this 
abundant  care  or  ca^ution.  The  necessity  for  such  vigilance 
is  not  always  apparent  before  the  loss,  and  its  exercise  may 
not  always  be  compatible  with  possible  convenience  and  pres- 
ent appliances.  After  a  loss  excuses  are  listened  to  with 
reluctance.  Expedients  which  might  have  been  resorted  to 
for  its  prevention  are  suggested  with  readiness,  and  in  abun- 
dance; and  indicate  plainly  that,  although  prevention  is  -pvei- 
erable  to  remedies,  yet  human  nature  is  never  sujierior, 
under  all  circumstances,  to  the  vices  and  accidents  of  life. 
To  require  that  disbursing  officers  shall  be  gifted  with  pre- 
science, or  endowed  with  power  to  use  superhuman  efforts, 
so  as  always  to  avoid  or  prevent  losses,  would  be  to  exact  from 
mortals  the  exalted  excellencies  of  superior  beings.  From  the 
latter  class  disbursing  officers  are  rarely,  if  ever,  appointed,  "(/t) 
And,  in  this  case,  the  statute  is  held  to  be  prospective,  as 
well  as  retrospective,  in  regard  to  such  losses. 

§  356.  Claims  arising  under  treaty  are  not  cognizable  in 
the  court  of  claims,  either  originally,  or  by  way  of  review  over 
the  finding  of  a  special  tribunal  appointed  by  the  treaty. (/,) 
And  the  statute  expressly  exempts  claims  under  a  treaty, 
whether  with  foreign  nations  or  with  Indians. 

§  357.  Where  a  contractor  refers  a  disagreement  with  the 
United  States,  as  to  the  amount  of  a  claim  due  him,  and  the 
United  States  consents  to  the  reference,  and  the  commission 
to  which  the  matter  is  submitted  awards  a  certain  amount 
less  than  the  claim,  and  the  contractor  receives  payment  of 
that  amount,  he  cannot  afterwards  come  into  the  court  of 
claims  for  the  remainder  of  his  claim,  even  though  he  has 
not  given  a  receipt  in  full.(j)  It  is,  then,  in  the  nature  of  res 
adjudicata,  or,  at  any  rate,  of  an  award. 

(fe)Glenn's  Case,  4  C.  of  C.  r.06.  (j)Unilcd    States    v.    Justus,    14 

(i)Meade'3  Case,  2  C.  of  C.  225.  Wall.  .OliS. 


368      CLAIMS  AGAINST  THE  NATIONAL  GOVERNMENT. 

§  358.  Where  salvage  services  are  rendered  to  a  vessel 
belonging  to  the  government,  a  suit  for  compensation  may  be 
brought  by  the  salvor  in  the  court  of  claims,  (/r) 

§  359,  It  seems  that  although  the  court  has  not,  ordina- 
rily, equity  jurisdiction,  yet  congress  may,  where  a  legal 
defence  fails  through  a  defect  in  a  written  instrument,  as  a 
lease,  refer  back  that  particular  case  to  the  court  of  claims, 
with  directions  to  grant  such  equitable  relief  as  it  appears  the 
claimant  is  entitled  to;  but  such  a  reference  only  confers  a 
special  jurisdiction  pro  hac  vice,  and  does  not  extend  to  any 
subsequent  case,  however  similar  in  its  nature. (Z)  And,  also, 
congress  may,  by  private  act,  confer  jurisdiction,  subject  ta 
the  same  limitation,  in  a  particular  case  arising  under  a 
treaty,  (m) 

§  360.  By  the  act  of  twenty-fifth  June,  1868,  the  head  of 
any  executive  office  may  refer  any  claim  exceeding  three 
thousand  dollars  to  the  court  of  claims ;  provided  it  belongs 
to  one  of  the  several  classes  of  cases  to  which,  by  reason 
of  the  subject-matter  and  character,  the  court  might,  under 
existing  laws,  take  jurisdiction,  on  a  voluntary  action  by 
the  claimant.  Under  this,  it  is  held  that  such  otiicer  can- 
not accompany  the  reference  with  a  ^jrescription  of  what 
questions  the  court  should  consider.  "His  duty  is  performed 
when  he  sends  the  claim  with  the  information  that  it  involves 
disputed  facts,  or  controverted  questions  of  law.  Thence- 
forth, the  case  is  with  the  court,  which  will  consider  and  de- 
termine such  questions  as  legitimately  arise  in  it."(w)  Also 
it  has  been  held  that  the  head  of  the  war  department  may, 
after  a  claim  has  been  allowed  for  the  hire  of  a  steamboat 
under  a  charty-party  with  the  United  States,  by  the  auditor 
and  comptroller,  refuse  to  pay  the  claim  so  allowed,  and  refer 
the  case  to  the  court,  even  if  the  vouchers,  etc.,  which  are 
to  be  transmitted  with  the  reference,  are  in  the  auditor's 
office  ;(o)  a  charter-party  being  within  the  range  of  the  juris- 
diction, and  the  finding  of  the  auditor  not  being  regarded  as 
necessarily  final,  even  upon  the  party,  and  although  he  ac- 

(A;)Bn-ans  Case,  6  C.  of  C.  128.  (7i)Brigbt's  Case,  6  C.  C.  121. 

(Z) Cross'  Case,  5  C.  of  C.  88.  (o) Delaware  Steamboat  Case,  5  C. 

(m)Atocha's  Case,  6  C.  of  C.  69.        of  C.  59. 


CLAIMS  AGAINST  THE  NATIONAL  GOVERNMENT.      o()9 

ccpts  it.(p)  But  it  is  the  reference  that  gives  jurisclictio:i ; 
for  there  is  no  power  of  appeal  from  executive  decisions  to  the 
court  of  claim 8.(5) 

It  is  held,  however,  that  a  presentation  of  a  claim  to  an 
executive  department  is  not  a  prerequisite  to  the  bringing  of 
a  suit  in  the  court,  (?•)  except  where  it  is  ordinarily  settled  in 
an  executive  de2:)artment.(.s) 

A  regulation  of  an  executive  department,  under  which  claims 
may  arise  for  the  adjudication  of  the  court,  is  defined  to  be  a 
rule  made  by  the  head  of  the  department,  under  an  emjiower- 
ing  act  of  congress,  and  not  a  mere  order ;  and  so  these  regu- 
lations, as  well  as  the  jurisdiction  thereon  founded,  are  sub- 
ject to  the  laws  of  the  United  States  directly. (i) 

§  361.  In  a  case  where  one  enters  into  a  contract  with  an 
Indian  commissioner  for  supplies  to  the  Indians,  it  appears 
congress  may,  by  resolution,  refer  the  case  back  to  the  court, 
with  instructions  to  disregard  the  contract,  and  allow  the 
claim  on  a  quantum  in.eruit.(^u) 

§  3G2.  A  claimant  made  a  contract  to  furnish  two  thousand 
nine  hundred  cavalry  horses,  to  be  examined  and  inspected 
before  accejatance.  Before  delivery  the  government  adopted  a 
new  and  more  stringent  rule  of  inspection.  The  claimant  then 
refused  to  supjaly  the  horses  under  the  agreement,  regarding 
the  new  rule  as  a  breach  of  the  contract  by  the  government, 
and  brought  suit  thereon,  and  connected  with  this  suit  a  claim 
for  damages  by  reason  of  an  illegal  arrest  and  imprisoinnent. 
Held,  that  the  claimant  had  no  cause  of  action  from  the 
adoption  of  a  new  rule  of  inspection,  and  that  the  comt  had 
no  jurisdiction  9i  an  action  to  recover  damages  for  an  iih^gal 
arrest  and  imj)risonmeiit.(r) 

§  363.  Military  occupation  and  damages  of  the  war  during 
the  rebellion  are  expressly  excepted  from  the  jurisdiction  of 
the  court  of  claims  by  the  act  of  1864.  And  it  has  been  held 
that  where  suit  was  brought  for  such  damage  before  the  act 

(;i)Hogert"s  Case,  2  ('.  of  C.  ICO.  (/)!!  irvcy^s  Casi-,  ;J  (".  of  ('.  :!!>. 

(y)Tillou's  Case,  3  C.  of  C.  454.  (tONorris'  Case,  2  C.  of  C.  V)!^,. 

(rjSweeney's  Ca.se,  5  C.  of  C.  291.  (yjSpicer's  Case,  1  C.  of  C.  316. 

(«)Clyde's  Case,  Ibid,  140. 
V.l  — 24 


I 


370      CLAIMS  AGAINST  THE  NATIONAL  GOVERNMENT. 

was  passed,  the  jurisdiction  was  ousted  by  the  passage  of  the 
act  which  dechires  that  its  provisions  shall  extend  from  the 
commencement  to  the  close  of  the  wa.i\(w)  But  where  a  build- 
ing in  Washington  was  taken  possession  of  during  the  rebellion 
by  the  military  governor  of  the  District  of  Columbia  for  the  use 
of  the  quartermaster  general,  and  was  thus  used  by  a  bureau 
of  one  of  the  departments  of  the  civil  service,  it  was  held 
that  a  claim  for  the  rent  was  within  the  jurisdiction,  not- 
withstanding the  building  was  taken  by  a  military  gov- 
ernor, (u;) 

But  where  a  contract  was  privately  made  for  sand,  by  an 
officer  of  the  military  service  connected  with  the  quarter- 
master's department  in  the  field,  namely,  at  Nashville,  Ten- 
nessee, it  was  held  beyond  the  jurisdiction,  as  being  a  mili- 
itary  appropriation. (?/)  So,  where  supplies  were  taken  from 
a  farm  in  Virghiia,  and  afterwards  the  quartermaster  gave  the 
owner  a  eertiticate  of  the  supplies,  it  was  held  that  such  after 
certificate,  and  the  promise  of  payment  thereon  for  the  sup- 
plies, did  not  give  jurisdiction  to  the  court,  it  being,  neverthe- 
less, a  military  appropriation. (^)  So,  where  a  building  was 
taken,  in  Memphis,  for  the  use  of  the  pay  department,  on  the " 
promise  of  a  clerk,  without  authorit}-,  that  rent  should  be 
paid,  no  lease  of  the  building  being  given  by  the  owner,  but 
only  his  consent  obtained  upon  the  promise,  it  was  held  not 
within  the  jurisdiction. (a)  And  a  claim  for  rent,  accruing 
since  the  close  of  the  rebellion,  on  property  seized  by  the  army 
during  the  war,  is  also  excluded. (Z;)  But  where  a  building 
in  the  District  of  Columbia  was  taken  by  the  military  governor 
of  Washington,  as  a  military  hospital,  but  was  treated  by  the 
war  department  as  held  under  an  implied  lease,  the  court 
iield  tiiat  it  had  jurisdiction,  not  being  able  to  say  that  it 
was  appropriated  by  the  army.(c)  And  so,  where  a  building 
in  Memphis  was  held  under  a  lease,  with  the  knowledge  and 
approval  of  the  war  department,  and,  when  the  lease  expired, 

(//•)('orl)ctf  s  Case,  1  C.  of  C.  139.  (./jAyer's  CaFc.  3  C.  of  C.  1. 

{.t){:iark^s  Case,  1  C.  of  C.  145.  (A)Bi.><liop's  Case,  4  C.  of  C.  44^. 

(.y)Lindlay's  Case,  4  C.  of  C.  359.  (r)Waters'  Case,  4  C.  of  C.  390. 
(?)  Patterson's  Case,  6  C.  of  C.  40. 


CLAIMS  AGAINST  THE  NATIONAL  GOVERNMENT.      37i 

the  quartermaster  having  charge  authorized  the  owner  to 
make  repairs  of  the  injuries  done  during  the  lease,  and  the 
owner  did  so,  the  court  of  cLaims  entertained  jurisdiction  of 
an  action  to  recover  the  expenditure  of  the  repairs. (rf) 

An  impressed  steamhoat  comes  under  the  prohibition  of 
jurisdiction  in  claims  arising  from  military  appropriation. (e) 
But  in  a  case  where  the  use  of  a  steamboat,  during  an  emer- 
genc}-,  was  attended  by  circumstances  which  implied  a  con- 
tract of  reimbursement,  the  court  maintained  jurisdiction. (/) 

§  364.  So,  property  accidentally  destroyed  in  military  oper- 
ations, such  as  the  burning  or  bombardment  of  a  town,  is 
excluded  from  the  jurisdiction. (f/)  And  the  jurisdiction  in 
such  matters,  taken  away  by  the  act  of  1864,  was  not  restored 
by  the  joint  resolution  of  December  23,  1869,  even  in  regard 
to  steamboats;  although  the  latter  act  related  to  the  mode 
of  settling  for  them  when  impressed  into  the  service  of  the 
United  States  during  the  rebellion. (//) 

§  3t)5.  With  regard  to  abandoned  or  captured  property^ 
the  court  of  claims  has  not  jurisdiction — excejit  as  to  the  pro- 
ceeds of  property  captured  after  July  17,  1862,  and  before 
March  12,  1863,  and  actually  paid  into  the  treasury,  without 
judicial  condemnation,  and  cases  arising  under  the  acts  of  1863 
and  1864.  U.  S.  v.  Pngh,  99  U.  S.  268.  And  where  a  steamer 
was  u-ed  in  the  rebel  service  till  the  capture  of  Charles- 
ton, and  then  the  owner  placed  her,  under  agreement  with  a 
navy  engineer,  in  the  government  service — the  approval  of 
the  quartermaster  at  Charleston  l^eing  afterwards  given  to 
the  agreement — and  yet  the  vessel  was  eventually  sold  with 
captured  vessels,  and  the  proceeds  paid  into  the  abandoned 
and  captured  property  fund,  it  was  held  the  court  had  not 
jurisdiction, (i)  although  where  a  sale  was  made  prior  to  the 
passage  of  the  act  of  1864,  and  the  proceeds  paid  into  the 
treasury,  the  jurisdiction  thereby  attaches. (j) 

(f/)Provine"s  Case,  5  Col  ('.  i'>iK  (//)K  imlmlls  Case,  18  Wall.  (J.'iC 

(^)Slawson's  Case,  4  C.  of  C.  88.  (?:)Slia\v son's     Ca.sc,    t;   ('.  of    C. 

(/)U.  8.  V.  llussell,  13  Wall.  (i2:i  370. 

(ry)PeiTin   /).   V.   S.    12  Wall.  ol5.;  (j).\Iii)ors  Ca.sc,  (J  C.  of  C.  3:i:i. 
Pii-hs  Case,  i:J  Wall.  033. 


o  ,  _  CLAIMS    AGAINST    THE    NATIONAIi    (iOVEUNMENT, 

§  80i>.  Where  one  has  given  aid  and  comfort  to  the  rebel- 
lion he  cannot  come  into  the  court ;  and  a  pardon  does  not 
restore  the  power  of  suing. (7t)  But  paying  to  a  confederate 
loan,  under  compulsion,  and  under  protest,  by  one  who  per- 
sistently opposed  the  rebellion  openly,  is  held  not  to  be  aid 
and  comfort. (Z) 

§  367.  Although  it  is  a  principle  firmly  fixed  that  the  gov- 
ernment is  not  liable  for  the  mere  tortious  acts  of  an  officer, 
yet,  where  the  act  complained  of  is  the  mere  withholding  of 
money,  the  government  is  held  liable  for  the  acts  of  the  exec- 
utive officers,  in  the  court  of  claims;  which  says,  on  this 
matter  of  its  own  jurisdiction:  "The  court  of  claims  was 
established  to  give  legal  redress  to  the  citizens  as  against  the 
government,  where  he  would  have  had  legal  redress  as  against 
another  citizen.  We  cannot  give  legal  redress  except  upon 
legal  principles.  We  cannot  sustain  a  defence  upon  the  part 
of  the  government,  where,  if  set  up  by  an  ordinary  defendant, 
it  would  be  held  illegal,  inequitable,  unconscionable.  What 
would  be  said  of  a  bank  that  would  come  into  court,  while 
still  withholding  the  funds  of  a  depositor,  and  plead  that 
the  refusal  to  pay  over  was  the  tortious  act  of  its  cashier? 
W^hat  would  be  thought  of  a  common  carrier  who,  while  re- 
taining possession  of  goods,  i:)retends  that  the  conversion  was 
merely  the  wrongful  act  of  his  agent"?  Such  is  the  position 
of  the  government  in  this  suit,  withholding  money  that  does 
not  belong  to  it,  insisting  that  the  wrong  was  its  agent's, 
though  done  on  its  behalf,  and  that  the  owner  is  without  a 
remedy,  (/n) 

§  368.  The  jurisdiction  of  the  court  of  claims  does  not,  in 
any  case,  extend  to  reviewing  or  questioning  the  decisions  of 
a  prize  court. («) 

(A)Pargond's  Case,  4  C.  of  C.  337.  (njRoot  &  Connell's  Case,  5  0.  of 

(OPadelford's  Case,  4  C.  of  C.  320.       C.  408. 
(wi)Brown's  Case,  6  C.  of  C.  1!)8. 


ABANDONMENT    OF    HOMESTEAD    CLAIMS.  373 


CHAPTEE  VIII. 

ABANDONMENT    OF    HOMESTEAD    CLAIMS. 

4369.  Duties  of  land  officers  usually  ministerial  but  judicial  as  to  aban- 
donment— instruction  of  land  commissioner. 

370.  Jurisdiction  of  an  equitable  rather  than  legal  nature  herein. 

371.  Effect  of  cancellation  of  claims. 

372.  Synopsis  of  decisions  from  Lester. 

373.  Unintentional  lapses. 

374.  Soldiers  and  sailors. 

375.  Claim  made  while  in  the  army — what  absences  do  not  work  aban- 

donment. 

376.  Onl}'  one  entry  allowed. 

377.  Doulile  homesteads  on  marriage. 

378.  Homestead  entries  only  on  surve.yed  tracts. 

379.  Conflicting  claims  determined  by  bid.s. 

§  369.  Under  the  homestead  laws  of  congress,  the  duty  of 
land  officers  is  mainly  ministerial.  But  they  have  a  judicial 
power,  in  relation  to  abandonments  for  six  months,  and  con- 
sequent forfeiture  of  the  claim.  Such  contests  are  investigated 
by  either  the  register  or  receiver  of  the  land  offices  of  the  dis- 
trict wherein  the  land  lies,  and  the  decision  is  subject  to  a 
review  by  the  secretary  of  the  interior,  in  the  nature  of  an 
appeal. 

The  following  instruction  was  issued  by  the  commissioner 
of  the  general  office,  in  regard  to  this  matter,  December  14, 
1865:  "When  a  homestead  entry  is  contested,  and  applica- 
tion is  made  for  cancellation,  the  party  so  applying  must  file  an 
affidavit  setting  forth  the  facts  on  which  his  allegations  are 
grounded,  describing  the  tract,  and  giving  the  name  of  the 
settler.  You  will  then  set  apart  a  day  for  the  hearing,  giving 
all  the  parties  in  interest  notice  of  the  time  and  place  of  Iriah 
On  the  day  of  hearing  you  will  distinctly  show,  at  the  cap- 
tion of  the  papers  in  the  proceeding,  the  name  of  the  settk-r, 
description  of  the  tract,  number  and  date  of  entry.      You  will 


374  ABANDONMENT    OF    HO:\IESTEAD    CLAIMS. 

then  proceed  with  the  examinatiou  of  the  witnesses.  Each 
tleposition  must  be  signed  b}^  the  ■witness,  and  acknowledged 
before  either  the  register  or  receiver;  and,  at  the  conclusion 
of  the  trial,  you  will  briefly  review  the  testimony,  and  there- 
after will  transmit  to  this  office  all  the  papers,  with  your 
joint  decision  thereon  annexed  thereto,  for  final  determina- 
tion. Notice  to  a  settler  that  his  claim  is  contested  must  be 
served  by  a  disinterested  party,  and  a  copy  must  be  filed, 
with  an  affidavit  that  the  notice  has  been  served  upon  the 
homestead  party,  or  brought  home  to  him  so  as  to  be  legal 
notice — such  copy  of  notice  and  affidavit  to  accompany  the 
papers.  The  expenses  incident  to  such  contest  must  be  de- 
frayed by  the  contestant. "'(rij 

§  370.  The  judicial  authority  of  the  land  officers  in  these 
matters  is  regarded  as  more  equitable  than  legal;  and  so  it 
has  been  held  that  persons  who  have  made  homestead  appli- 
cations, but  have  not  fully  complied  with  the  acts  in  force, 
yet  have  made  some  reasonable  effort  to  comply,  are  regarded 
as  having  an  equity  which  is  to  be  respected. (6)  And  thus, 
where  one  had  made  an  entry,  and  improved  the  land  to  the 
extent  of  two  thousand  dollars  or  more,  and,  after  living  on  the 
claim  a  short  time,  leased  it  to  another,  and  meanwhile  a  pre- 
emptor  settled  upon  it  and  brought  proceedings  to  cancel  the 
homestead  entr}^  it  was  held  that,  considering  the  value  of  the 
improvements,  and  also  the  fact  in  evidence  that  the  homestead 
applicant  l)elieved  that  residence  or  cultivation  either  w"Ould 
be  sufficient,  he  should  be  allowed  to  make  a  new  application 
and  retain  his  claim. (c) 

§  371.  The  effect  of  an  application  is  to  withdraw  the  land 
from  the  public  domain;  and  of  a  cancellation,  to  restore  it 
again. (^/)  Only  citizens  can  perfect  claims,  but  it  is  suffi- 
cient if  citizenship  be  proved  at  the  end  of  the  five  years' 
settlement. 

§  372.  I  avail  myself  of  the  following  synojisis  of  decisions 
collected  by  Lester,  (vol.  2,  p.  26-1,  etc. :) 

Proof  must  be  made  of  actual  settlement  and  cultivation 

{<i)l  Lcstc-r's  Land  Laws,  259.  (r)Iliid,  KiU. 

(/>)Zal)riskifc's  Land  Laws.  1G4.  ((nllii(L  \i\2. 


ABANDONMENT    OF    HOMESTEAD    CLAIMS.  C75 

up  to  the  time  of  payment,  so  as  to  show  a  bona  Jidc  pur- 
pose, on  the  part  of  the  settler,  to  make  the  land  his  per- 
manent homestead.  Wherever  the  proof  may  show  an  honest 
effort  by  the  claimant  to  meet  the  requirements  of  the  statute, 
the  register  and  receiver  are  directed  to  deal  with  the  matter 
in  no  narrow,  but  in  a  liberal,  spirit,  yet  in  subordination  to 
the  requirement  of  the  statute.  In  cases  where  the  settler  is 
deceased,  and  his  legal  representatives  thereafter  discover 
that  the  homestead  papers  describe  other  land  than  the  tract 
embraced  by  his  actual  settlement,  it  has  been  held  that  the 
widow  or  representatives  may  prove  and  thereafter  certif}^ 
on  application,  to  the  correct  description  of  the  tract  upon, 
which  the  deceased  actually  settled,  and  when  satisfactory 
the  error  in  description  may  be  corrected. 

Cases  have  arisen  where  persons  have  been  complained 
against  as  failing  to  comply  with  the  law,  and  where  these, 
although  failing  in  residence,  have  yet  made  considerable 
improvements ;  and  herein  it  has  been  held  that,  although 
their  rights  as  homestead  claimants  have  been  forfeited,  yet, 
in  view  of  their  improvements,  they  should  be  allowed  to  pur- 
chase the  land  at  private  entry,  after  the  land  was  duly 
offered,  and  thereby  made  liable  to  such  entry.  And  the 
same  rule  has  been  observed  where  the  settler  has  died,  and 
the  heirs  failed  to  continue  the  residence  on  the  land. 

§  373.  Cases  of  abandonment  have  also  arisen,  wherein 
it  has  been  shown  that,  b}-  reason  of  sickness,  want  of  means> 
or  other  good  causes,  the  parties,  although  they  had  cultiva- 
ted the  land,  had  failed  to  make  residence  for  the  prescribed 
period  of  five  years.  In  such  cases,  the  land  officers  have 
refused  to  cancel  the  homestead  entries,  the  intention  of  the 
settler  appearing  to  be  bona  Me,  and  allowed  the  five  years' 
residence  to  take  date  from  the  day  of  actual  residence,  on 
the  party  filing  an  affidavit,  within  a  reasonable  period,  that 
he  has  permanently  renewed  settlement  on  the  claim. 

§  374.  Soldiers,  and  those  serving  in  the  navy,  are  enti- 
tled to  deduct  their  term  of  service  from  the  period  of  settle- 
ment. And,  sometimes,  these  have  made  application,  tliiongli 
agents,  under  the  impression  that  no  settlement  is  required 


370  ABANDONMENT    OF    HOMESTEAD    CLAIMS. 

until  the  expiration  of  their  term  of  service,  and  that,  should 
their  service  absorb  five  years,  such  service  will  be  accepted 
in  lieu  of  settlement  and  cultivation ;  but  it  is  held  the  law- 
recognizes  no  such  arrangement,  but  that  actual  settlement 
and  cultivation  are  required,  so  that  title  cannot  be  acquired 
unless  the  party,  immediately  upon  discharge  from  service, 
enters  upon  the  land,  makes  it  his  home,  and  cultivates  it. 

§  375.  At  one  time  a  case  came  up  on  an  application  to 
cancel  a  homestead  entry,  wherein  the  testimony  showed  it 
to  have  been  made  while  the  claimant  was  serving  in  the  army 
of  the  United  States,  from  which  he  was  mustered  out,  in 
May,  1866.  Soon  after  his  discharge  he  built  a  small 
shanty,  and  began  work  on  the  homestead,  continuing  to 
occupy  it,  though  with  frequent  short  intervals  of  absence. 
It  was  held  that  he  had  not  abandoned  his  tract,  although 
the  character  of  his  improvement,  and  the  manner  of  his 
residence,  were  not  such  as  the  law  contemplates.  The  ap- 
plication for  a  cancelling  was  thereon  refused;  but  a  more 
complete  compliance  with  the  requirement  of  the  law  was  en- 
joined. The  settler  was  informed  that  he  must  put  up  a  house 
which  would  answer  the  purpose  of  a  permanent  residence — 
not  merel}'  a  place  of  temporary  resort — to  show  his  intention 
to  comply  with  the  law,  and  must  make  the  land  what  the 
statute  intends,  his  actual  homestead :  and  he  was  allowed 
sixty  days  to  complete  the  house  and  move  into  it — these  facts 
being  evidenced,  at  the  termination  of  the  sixty  days,  by  affi- 
davit and  corroborative  testimony. 

§  376.  One  homestead  privilege  exhausts  the  right,  even 
on  commutation,  but  does  not  set  aside  a  pre-emption  privi- 
lege. 

§  377.  Where  a  widow  with  a  homestead  settlement  mar- 
ries a  person  who  has  made  a  homestead  settlement  on  an- 
other tract,  they  are  allowed  to  elect  which  tract  they  will 
retain  for  permanent  residence,  to  complete  the  title,  and 
then,  as  I  understand  from  the  decision,  the  other  may  be 
obtained  by  paying  up  under  the  homestead  act  of  May,  1862, 
thereby  perfecting  the  homestead ;  this  payment  being  re- 
garded as  a  commutation,  or  legal  substitution,  for  the  con- 


ABANDONMENT    OF    HOMESTEAD    CLAIMS.  377 

tinuous  labor  of  the  five  years'  settlement,  and  therefore  as 
not  having  any  subsequent  pre-emption  rights. 

§  378.  Homestead  settlements  can  only  be  made  on  snr- 
Teyed  tracts,  and  the  selection  must  be  wholly  in  a  snigle 
■district. 

§  379.  Where  there  are  conflicting  claims,  in  which  the 
two  stand  on  equal  ground  as  to  settlement  and  cultivation, 
the  matter  is  to  be  determined  by  the  highest  bid  made  by 
either  for  the  privilege.  But  if  either  has  the  priority  of 
settlement,  he  is  entitled  to  the  privilege  without  bidding 
for  it. 


378  IMPEACHMENT. 


CHAPTER  IX. 

IMPEACHMENT. 

§380.  AVhat  articles  of  impeachment  embrace. 

381.  Effect  of  resiirnation  before  articles  are  preferred. 

382.  Futility  of  impeachment  proceedings  at  present. 

383.  Example — Hopkinson  case. 

384.  Same — Peck  case. 

385.  Same — case  of  Judge  Chase  of  the  United  States  supreme  courts 
38().  Same — case  of  President  Johnson. 

387.  Remark. 

§  380.  A  senate,  whether  of  the  United  States,  or  of  one  of 
the  states  of  the  Union,  sometimes  becomes  a  court  for  the 
judicial  decision  of  articles  of  impeachment,  presented  by  the 
house  of  representatives,  against  an  executive  or  judicial 
officer,  for  misdemeanors  in  office.  Although  such  articles 
will  lie  for  indictable  crimes,  yet  they  may  embrace — and  are 
particularly  intended  to  embrace — offences  not  actionable  at 
law.  As  at  present  constituted,  such  proceedings  are  very 
little  better  than  a  farcical  absurdity,  at  least  as  regards 
executive  officers,  since  the  court  is  a  political  partisan  body^ 
and  a  two-thirds  vote  is  requisite  to  conviction,  in  every  case. 
Either  the  jurisdiction  will  have  to  be  abandoned  altogether, 
or  else  a  court  of  impeachment  will  have  to  be  established, 
similar  to  criminal  courts;  not,  perhaps,  a  separate  court, 
but  a  separate  branch  attached  to  the  ordinarj^  judicial  courts, 

§  381.  In  the  case  lately  pending  before  the  senate  of  the 
United  States,  wherein  Secretary  Belknap  was  the  accused 
party,  a  question  of  jurisdiction  arose  from  the  fact  that  he 
resigned  his  office  before  proceedings  were  instituted,  but  in 
contemplation  of  them.  A  majority — but  not  two-thirds — 
sustained  the  jurisdiction.  It  is  manifest  that  if  there  were 
no  penalty  except  removal  from  office,  a  resignation  would 
completely  circumvent  it.     But  as  it  extends,  also,  to  futm-e 


IMPEACHMENT.  370 

perpetual  disqualification,  there  is  a  basis  for  the  exercise  of 
jurisdiction  herein,  even  when  the  office  has  been  vacated. 
And  the  impolicy  of  advertising  that  a  man  may  escape  im- 
peachment by  merely  resigning  when  the  crisis  comes  is  cer- 
tainly quite  apparent. 

§  382.  It  is  scarely  worth  while  to  lay  down  any  principles 
upon  a  matter  which  has  lost  nearly  all  its  practical  impor- 
tance, although,  in  a  work  on  the  general  subject  of  jurisdic- 
tion, it  seemed  needful  to  give  this  a  passing  notice.  In  the 
star  chamber  days  impeachments  were  easy  enough;  but 
now,  in  our  country,  an  acquittal  is  almost  a  foregone  con- 
clusion in  any  case,  however  Hagrant. 

§  383.  In  1780  articles  of  impeachment  were  presented  to 
the  senate  of  Pennsylvania  against  Francis  Hopkinson,  judge 
of  admiralty.     The  articles  contained  the  following  charges : 

I.  "That  having  a  power  by  law  to  appoint  an  agent  for 
unrepresented  shares  belonging  to  absent  seamen,  and  others, 
he  offered  and  proposed  to  appoint  Mr.  Blair  McClenachan 
agent  for  a  number  of  such  shares  belonging  to  seamen  who 
had  sailed  on  board  the  privateer  Holker,  upon  the  condition 
that  he,  the  said  Blair  McClenachan,  would  make  a  present 
of  a  suit  of  clothes,  and,  this  condition  not  being  complied 
with,  he  appointed  others  in  his  stead. 

II.  "Receiving  presents  from  persons  interested  in  the  con- 
demnation of  prizes  previous  to  their  condemnation ;  particu- 
larly a  cask  of  wine  from  on  board  the  prize  brigantine 
Gloucester,  presented  to  him  by  the  captors  before  any  con- 
demnation, sale  or  distribution. 

III.  "Conniving  at,  and  encouraging,  the  sale  of  prizes 
before  condemnation,  contrary  to  law,  and  maliciously  charg- 
ing the  marshal  with  the  crime  of  such  conduct  before  the 
honorable,  the  supreme  executive  council,  in  the  instance  of 
the  prize  ship  Charlotte. 

IV.  "Issuing  a  writ  of  sale  of  the  cargo  of  a  prize,  declar- 
ing in  the  same  writ  that  it  was  testified  to  him  that  the  same 
cargo  was  in  danger  of  waste,  spoil,  and  damage,  when,  in 
fact  and  in  truth,  no  such  testimony  was  ever  given  to  him, 
in  till'  mstance  of  the  cargo  of  the  prize  ship  Albion." 


380  IMPEACHMENT. 

Tlie  judge  bad  a  unanimous  acquittal  on  all  the  four 
charges. 

§  384.  In  1839,  Judge  Peck,  judge  of  the  district  court  of 
the  United  States  for  the  district  of  Missouri,  was  impeached 
before  the  United  States  senate,  for  imjDrisoning  an  attorney 
of  the  court,  and  disbarring  him  for  eighteen  months,  for 
contempt  in  criticising  the  action  of  the  court  in  a  St.  Louis 
newspaper,  by  an  article  published  subsequently  to  the  pro- 
ceedings whereon  the  criticism  was  based. 

He  was  acquitted  by  a  vote  of  twenty-one  "guilty,"  and 
twenty-two  "not  guilty." 

§  385.  In  1804  articles  were  preferred  against  one  of  the 
judges  of  the  supreme  court  of  the  United  States,  and  tried 
by  the  United  States  senate.     The  charges  were : 

I.   "That  the  said  Samuel  Chase  did,  in  his  judicial  capac- 
ity, conduct  himself  in  a  manner  highly  arbitrary,  oppressive 
and  unjust,"  in  the  following  particulars:    (1)  In  delivering 
an  opmion  in  writing  on  the  question  of  law,  on  the  construc- 
tion of  which  the  defence  of  the  accused  materially  depended, 
tending  to  prejudice  the  minds  of  the  jury  against  the  case  of 
the  said  John  Fries,  the  prisoner,  (on  a  charge  of  high  trea- 
son against  the  United  States.)  before  counsel  had  been  heard 
in   his   defence;    (2)   in   restricting   the  counsel  for  the  said 
Fries  from  recurring  to  such  English  authorities  as  they  be- 
lieved apposite,  or  from  citing  certain  statutes  of  the  United 
States  which  they  deemed  illustrative  of  the  positions  upon 
which  they  intended  to  rest  the  defence  of  their  client;   (3)  in 
debarring  the  prisoner  from  his  constitutional  privilege  of  ad- 
dressing the  jury  (through  liis  counsel)  on  the  law  as  well  as 
on  the  fact  which  was  to  determine  his  guilt  or  innocence, 
and,  at  the    same  time,  endeavoring  to  wrest  from  the  jury 
their  indisputable  right  to  hear  argument  and  determine  u^jou 
the  question  of  law  as  well  as  the  question  of  fact  involved  in 
the  verdict  which  they  were  required  to  give ;   in  consequence 
of  which  irregular  conduct  of  the  said  Samuel  Chase,  as  dan- 
gerous to  our  liberties  as  it  is  novel  to  our  laws  and  usages, 
the  said  John  Fries  was  deprived  of  the  right  secured  to  him 
by  the  eighth   [sixth]    article  amendatory  of  the  constitution, 


IMPEACHMENT,  381 

and  was  condemned  to  death*  without  liaving  l)een  beard  by 
counsel  in  his  defence,  to  the  disgrace  of  the  character  of  tbe 
American  bench,  in  manifest  violation  of  law  and  justice,  and 
in  open  contempt  of  the  rights  of  juries,  on  which  untimately 
rest  the  liberty  and  safety  of  the  American  people. 

II.  "That,  prompted  by  a  similar  spirit  of  persecution  and 
injustice,  at  a  circuit  court  of  the  United  States,  held  at  Rich- 
mond in  the  month  of  May,  etc.,  for  the  district  of  Virginia, 
before  which  a  certain  James  Callender  was  arraigned  for  a 
libel  on  John  Adams,  then  president  of  the  United  States,  the 
said  Samuel  Chase,  with  intent  to  opjjress  and  procure  the 
conviction  of  the  said  Callender,  did  overrule  the  objection 
of  John  Bassett,  one  of  the  jury,  who  wished  to  be  excused  from 
serving  on  the  said  trial  because  he  had  made  up  his  mind  as 
to  the  publication  from  which  the  words  charged  to  be  libel- 
lous in  the  indictment  were  extracts,  and  the  said  Bassett  was 
accordingly  sworn  and  did  serve  on  the  jurj^  by  whose  verdict 
the  jDrisoner  was  subsequently  convicted. 

III.  ''That,  with  intent  to  oppress  and  procure  the  convic- 
tion of  the  prisoner,  the  evidence  of  John  Taylor,  a  material 
witness  on  behalf  of  the  aforesaid  Callender,  was  not  permitted 
by  the  said  Samuel  Chase  to  be  given  in,  on  pretence  that  the 
said  witness  could  not  prove  the  truth  of  the  whole  of  one  of 
the  charges  contained  in  the  indictment,  although  the  said 
charge  embraced  more  than  one  fact. 

IV.  "That  the  conduct  of  the  said  Samuel  Chase  was  marked 
during  the  whole  course  of  the  said  trial  by  manifest  injustice, 
partiality,  and  intemperance,  viz. :  (1)  In  compelling  the  pris- 
oner's counsel  to  reduce  to  writhig,  and  submit  to  the  inspec- 
tion of  the  court,  for  their  admission  or  rejection,  all  ques- 
tions which  the  said  counsel  meant  to  propound  to  the  above 
named  John  Taylor,  the  witness ;  (2)  in  refusing  to  postpone 
the  trial,  although  an  affidavit  was  regularly  tiled,  stating  the 
al)sence  of  material  witnesses  on  behalf  of  the  accused,  and 
although  it  was  manifest  that,  with  the  utmost  diligence,  the 
attendance  of  such  witnesses  could  not  have  been  procured 
at  that  time:  (3)  in  the  use  of  unusual,  rude,  and  conterapt- 

*Hut  paiddiicd. 


382  IMPEACHMENT. 

lions  expressions  towards  tlie  prisoner's  counsel,  and  in  falsely 
insinuating  that  they  wished  to  excite  the  public  tears  and 
indignation,  and  to  produce  that  insubordination  to  law  to 
which  the  conduct  of  the  judge  did  at  the  s\me  time  mani- 
festly tend ;  (4)  in  repeated  and  vexatious  interruptions  of 
the  said  counsel  on  the  part  of  the  said  judge,  which  at 
length  induced  them  to  abandon  their  cause  and  their  client, 
who  was  thereupon  convicted  and  condemned  to  fine  and 
imprisonment;  (5)  in  an  indecent  solicitude  manifested  b}' 
the  said  Samuel  Chase  for  the  conviction  of  the  accused, 
unbecoming  even  a  public  j^rosecutor,  but  highly  disgraceful 
to  the  character  of  a  judge,  as  it  was  subversive  of  justice. 

V.  "And  whereas,  it  is  provided  b}"  the  act  of  congress, 
passed  on  the  twenty-fourth  day  of  September,  1789,  entitled 
'An  act  to  establish  the  judicial  courts  of  the  United  States,' 
that,  for  any  crime  or  offence  against  the  United  States,  the 
offender  may  be  arrested,  imprisoned,  or  bailed,  agreeably  to 
the  usual  mode  of  process  in  the  state  where  such  offender 
ma}'  be  found;  and  whereas,  it  is  provided,  by  the  laws  of 
Virginia,  that,  upon  presentment  by  any  grand  jury  of  an 
offence  not  capital,  the  court  shall  order  the  clerk  to  issue  a 
summons  against  the  person  or  persons  offending,  to  appear 
and  answer  such  presentment  at  the  next  court;  yet  the  said 
Samuel  Chase  did,  at  the  court  aforesaid,  award  a  capias 
against  the  body  of  the  said  Callender,  indicted  for  an  offence 
not  capital,  whereupon  the  said  Callender  was  arrested  and 
committed  to  close  custody,  contrar}'  to  law  in  that  case  made 
and  provided. 

VI.  "And  whereas,  it  is  provided  by  the  thirty-fourth  sec- 
tion of  said  act,  entitled  'An  act  to  establish  the  judicial 
courts  of  the  United  States,'  that  the  laws  of  the  several 
states,  except  where  the  constitution,  treaties,  or  statutes  of 
the  United  States  shall  otherwise  require  or  provide,  shall  be 
regarded  as  the  rules  of  decisions  in  trials  at  common  law,  in 
the  courts  of  the  United  States,  in  cases  where  they  apply; 
and  whereas,  by  the  laws  of  Virginia,  it  is  provided,  that,  in 
cases  not  capital,  the  offender  shall  not  be  held  to  aaswerany 
presentment  of  a  grand  jury  until  the  court  next  sueeefdinj 


IMPEACHMKNT.  383 

that  at  which  such  presentment  shall  have  heen  made;  yet 
the  said  Samuel  Chase,  M'ith  intent  to  oppress  and  procure 
the  conviction  of  the  said  Callender,  did,  at  the  court 
aforesaid,  rule  and  adjudge  the  said  Callender  to  trial  dur- 
ing the  term  at  which  he,  the  said  Callender,  was  presented 
and  indicted,  contrary  to  law  in  that  case  made  and  pro- 
vided. 

VII.  "That,  at  a  circuit  court  of  the  United  States  for  the 
district  of  Delaware,  held  at  New  Castle,  in  the  month  of  June, 
1880,  whereat  the  said  Samuel  Chase  presided,  the  said  Sam- 
uel Chase,  disregarding  the  duties  of  his  office,  did  descend 
from  the  dignity  of  a  judge,  and  stoop  to  the  level  of  an  in- 
former, by  refusing  to  discharge  the  grand  jury,  although 
■entreated  by  several  of  the  said  jury  so  to  do,  and  after  the 
said  grand  jury  had  regularly  declared,  through  their  fore- 
man, that  they  had  found  no  bills  of  indictment,  nor  had 
any  presentments  to  make,  by  observing  to  the  said  grand  jury 
that  he,  the  said  Samuel  Chase,  understood  '  tliat  a  highly 
seditious  temper  had  manifested  itself  in  the  state  of  Dela- 
ware, among  a  certain  class  of  people,  particularly  in  New 
Castle  county,  and  more  especialh-  in  the  town  of  Wilming- 
ton, where  lived  a  most  seditious  printer,  unrestrained  by  any 
principle  of  virtue,  and  regardless  of  social  order ;  that  the 
name  of  this  printer  was' — but,  checking  himself,  as  if  sensi- 
ble of  the  indecorum  he  had  committed,  added,  'it  might  be 
assuming  too  much  to  mention  the  name  of  this  i>erson,  but 
it  becomes  your  duty,  gentlemen,  to  inquire  diligently  into 
this  matter;'  and  that,  with  intention  to  procure  the  pros- 
ecution of  the  printer  in  question,  the  said  Samuel  Chase  did, 
moreover,  authoritatively  enjoin  on  the  district  attorney  of  the 
United  States  the  necessity  of  procuring  the  file  of  the  papers 
to  which  he  alluded,  and  which  were  uiuh'rstood  to  be  those 
published  under  title  of  'Mirror  of  the  Times  and  General 
Advertiser,'  and,  by  a  strict  examination  of  tliem,  to  lind  s.)me 
passage  which  might  furnish  tiie  groundwoik  of  a  prosecu- 
tion pgainst  the  printer  of  the  said  paper,  thereby  degrading 
Lis  high  judicial  functions,  and  tending  to  impair  the  public 


3S4  IMPEACHMENT. 

confidence  in,  and  respect  for,  tiie  tribunals  of  justice,  so  es- 
sential to  the  general  welfare. 

YIII.  "And  whereas,  mutual  respect  and  confidence  be- 
tween the  government  of  the  United  States  and  those  of  the 
individual  states,  and  between  the  people  and  these  govern- 
ments, respectivel}^  are  highly  conducive  to  that  public 
harmony  without  which  there  can  be  no  public  happiness, 
yet  the  said  Samuel  Chase,  disregarding  the  dignity  and  duty 
of  his  judicial  character,  did,  at  a  circuit  court  for  the  dis- 
trict of  Maryland,  held  at  Baltimore,  in  the  month  of  May, 
1803,  pervert  his  official  right  and  duty  to  address  the  grand 
jury  then  and  there  assembled  on  the  matters  coming  within 
the  province  of  the  said  jury,  for  the  purpose  of  delivering  ta 
the  said  grand  jury  an  intemperate  and  inflammatory  politi- 
cal harangue,  with  intent  to  excite  the  fears  and  resentment 
of  the  said  grand  jurj^  and  of  the  people  of  Maryland,  against 
their  state  government  and  constitution — a  canduct  highly 
censurable  in  any,  but  peculiarly  indecent  and  unbecoming 
in  a  judge  of  the  supreme  court  of  the  United  States:  and, 
moreover,  that  the  said  Samuel  Chase,  then  and  there,  under 
the  pretence  of  exercising  his  judicial  right  to  address  the 
said  grand  jury  as  aforesaid,  did,  in  a  manner  highly  unwar- 
rantable, endeavor  to  excite  the  odium  of  the  said  grand  jury, 
and  of  the  good  people  of  Maryland,  against  the  government 
of  the  United  States,  by  delivering  opinions  which,  even  if 
the  judicial  authority  were  competent  to  their  exj)ression  on 
a  suitable  occasion  and  in  a  proper  manner,  were,  at  that 
time,  and  as  delivered  by  him,  highly  indecent,  extrajudicial, 
and  tending  to  prostitute  the  high  judicial  character  with 
which  he  was  invested  to  the  low  purpose  of  an  electioneering 
partisan." 

The  vote  stood  thus  :  Guilty,  16, 10,  IS,  IS,  0,  4,  10, 19  ;  not 
guilty,  18,  24,  10,  16,  34,  30,  24,  15.  So  he  was  acquitted 
on  all  the  charges,  with  a  majority  vote  against  him  on  some 
of  them. 

§  380.  In  1808  articles  of  impeachment  were  preferred 
against  President  Johnson,  with  the  usual  result — an  acquit- 


IMPKACHMENT.  385 

tal;  tlie  vote,  however,  staiid-ing  within  one  of  a  two-thirds  in 
favor  of  sustaining  the  impeachment. 

§  387.  Without  ins.nuating  anything  either  way  as  to  the 
guilt  or  innocence  of  the  persons  I  have  named,  I  judge  it  is 
not  going  too  far  to  say  it  would  be  as  impossible  to  convict 
Lord  Jeffries  on  articles  of  impeachment,  under  the  present 
arrangement,  as  it  was  in  the  very  height  of  his  tyranny  as  a 
judicial  demon  in  England. 

Let  what  has  above  been  presented  as  examples,  or  illus- 
trations, of  the  matters  on  which  impeachment  jurisdiction 
has  been  exercised,  suffice  for  our  present  purpose. 


v.l— 25 


386  JURISDICTION    OF    JUSTICES    OF    EHE    PEACE. 


CHAPTER  X. 

JURISDICTION    OF    JUSTICES    OF    THE    PEACE. 

388.  Want  of  uniformity  in  the  different  states. 

389.  Law  of  presumptions. 

390.  Titles  to  lands. 

391.  .Justices  of  llie  peace  in  the  District  of  Columbia. 

392.  Immunities  of  a  justice  of  the  peace. 

393.  Process. 

394.  Venue. 

39.'i.  Rules  as  to  process  and  returns. 

396.  Disqualitication. 

397.  Evidence. 

398.  .Tudgments  by  default  not  allowable. 
309.  Guardian  ad  litem. 

400.  Di-scretion  of  a  justice. 

401.  Void  and  voidable  acts. 

402.  Jurisdiction  limited  by  amounts. 

403.  .Jury  trials. 

404.  Entry  of  judgment. 

405.  Relation  of  a  justice  to  other  justices. 

406.  Legislative  power  in  conferring  jurisdiction. 

§  388.  The  jurisdiction  of  justices  of  the  peace  is  so  com- 
pletely and  strictly  statutoiy,  and  the  statutes  of  the  various 
states  are  so  far  from  being  uniform,  that  hardly  any  general 
principles  are  available.  Thus,  in  some  states,  justices'  courts 
are  regarded  as  inferior  courts  of  record  ;  in  others  not.  In 
some  they  are  considered  common-law  courts ;  in  others  not — 
that  is,  to  a  certain  degree.  Thus,  at  common  law,  a  justice 
of  the  peace  had  no  power  whatever  to  try  offences.  He  was 
only  an  examining  magistrate,  to  inquire  into  the  grounds  of 
holding  an  accused  person  to  await  the  finding  of  an  indict- 
ment in  the  proper  court.  x\nd  the  power  of  trying  petty 
offenders  is  v.'holly  statutory,  and  it  must  be  exercised  in 
strict  accordance  with  the  statute.      Wai/s  Case,  41  Mich.  ^503. 

§  389.  However,  the  law  of  presumptions,  etc.,  which  pre- 


JURISDICTION    OF    JUSTICES    OF    THE    PEACE.  3S7 

vails  as  to  all  inferior  courts,  is  tlie  governing  rule  or  princi- 
ple herein  also.  That  is,  jurisdiction  must  affirmatively  ap- 
pear. Nothing  can  be  presumed  to  be  within  the  jurisdic- 
tion, [Downing  v.  Florer,  4  Col.  209;)  although  a  statute 
may  give  a  justice  exclusive  jurisdiction,  and,  where  this  is 
done,  a  higher  court  cannot  entertain  a  cause  within  its 
limits,  even  if  the  remedy  before  the  justice  is  inadequate 
therein,  and  though  the  amount  may  be  beyond  the  justice's 
jurisdiction,  so  that  the  cause  cannot  be  entertained  by  him. 
State  V.  McAllister,  60  Ala.  106. 

§  390.  And  I  suppose  that  almost,  if  not  quite,  universally, 
justices  have  no  jurisdiction  to  try  the  titles  to  lands.  And 
we  may  state  the  general  principles  governing  this  regulation. 
The  rule  is  thus  stated  by  the  New  Jersey  court :  The  jus- 
tice "has  no  jurisdiction  to  inquire  into  the  title  to  lands  or 
into  the  right  of  possession.  He  can  only  take  cognizance 
of  possession  as  a  question  of  fact.  Whore  the  p^'iintiff  can 
maintain  his  right  to  sue  in  trespass  by  proof  of  actual 
possession — which  the  justice  may  determine  upon  evidence 
of  facts,  without  any  inquiry  into  title — the  action  is  cog- 
nizable in  a  justice's  court;  but  if  the  possession  be  merely 
constructive,  and  can  be  shown  only  by  proof  of  title,  the 
justice  has  no  jurisdiction.  If  documentary  or  other  evidence 
relating  to  title  be  relied  on,  which  the  justice  cannot  adju- 
dicate upon,  another  tribunal  must  be  resorted  to."  Jejfrei/ 
V.  Given,  41  N.  Y.  262.  And  see  Grcgorij  v.  Kdnousc,  (>  Halst. 
62 ;  Hill  V.  Carter,  1  Harr.  87 ;  Campjicld  v,  Johnson,  1  Zab. 
S3;   Dickerson  v.  Wiuhirorth,  4  Vroom,  357. 

In  Vermont  it  is  held  that  the  term  "land,"  employed  in 
the  statute  giving  jurisdiction  to  justices  of  the  peace,  is  suf- 
ficiently comprehensive  to  include  within  the  exception  of  the 
statute  a  right  of  way  over  real  estate  held  by  the  public,  or 
an  individual.  But  it  is  further  held,  thereunder,  that  a  jus- 
tice is  not  excluded  by  that  statute  from  entertaining  juris- 
diction of  an  action,  merely  because,  under  the  plea  of  the 
general  issue,  or  a  plea  in  bar,  the  title  of  land  mag  be  drawn 
into  controversy,  but  only  when  the  action  nccessarilg  involves 
such  inquiry,  as  ejectment,  and  real  actions,  or  when,  by  the 


;ss 


JURISDICTION    OF    JUSTICES    OF    THE    PEACE. 


course  of  pleading,  the  title  to  land  is  actually  contested. ('/) 
And  so,  in  New  York,  it  has  been  held  that,  although  by  the 
plaintifif's  own  showing  the  title  to  lands  is  in  question,  and 
the  justice  improperl}^  refuses  to  dismiss  the  cause,  his  judg- 
ment will  not  he  void  for  want  of  jurisdiction,  but  only  void- 
able, for  error;  on  the  ground  that  the  justice  may  properly 
proceed  to  render  judgment,  even  if  evidence  of  title  is  given 
by  the  plaintiff,  if  the  defendant  does  not  expressly  dispute 
such  title,  nor  move  to  have  the  cause  dismissed, (6)  And, 
also,  a  justice  has  a  right  to  try  questions  of  possession  of 
land  in  an  action  of  trespass  quare  clausum  f regit,  (c) 

In  Pennsylvania,  also,  it  is  held  that  a  merely  incidental 
question  of  title  to  land  does  not  oust  the  jurisdiction  of  a 
justice. ir/)     And,  indeed,  this  is  probably  the  prevailing  rule. 

In  Missouri  replevin  may  be  brought  for  a  frame  building 
not  attached  to  the  realty,  and  a  justice  ma}-  retain  jurisdic- 
tion to  ascertain,  from  the  evidence,  whether  it  is  so  attached 
or  not.(<')  It  is  so  in  Illinois  likewise,  and  I  think  is  the 
general  rule.  Salter  v.  Sample,  71  111.  430;  Ogden  v.  Stock, 
34  111.  522. 


(a)Whitman».Pownal,  19  Yt.  223. 

Thus,  in  that  state,  recovering  a 
penalty  for  tearing  down  gates  on 
a  pent  road  is  out  of  jurisdiction, 
(French  v.  Holt,  51  Vt.  j45:)  and 
also  an  action  on  the  case  for  ob- 
structing a  water  course,  (Haven  v. 
Needham.  20  Vt.  183  ;)  and  for  erect- 
ing a  nuisance  near  plaintiff's  resi- 
dence, (Whitney  v.  Boweu,  11  Vt. 
2')0;)  and  all  cases  wherein  the 
plaintiff  is  bound  to  prove  or  dis- 
prove title  to  land,  (Jakeway  f).  Bar- 
rett, 38  Vt.  316.) 

In  Mississippi  it  is  lield  tliat  while 
the  statute  of  forcible  entiy  and 
detainer  does  not  confer  upon  jus- 
tices of  the  peace  the  power  to  ad- 
judicate real  estate  tit'es,  yet  it  does 
give  jurisdiction  of  cases  where  the 
right  of  possession,  is  deduced  from 
an    exhibition   of    title,    (Rtgan   v. 


Harrell,  52  Miss.  823:)  which,  it 
will  be  seen,  is  quite  different  from 
the  Vermont  rule. 

In  actions  for  rent,  of  course  the 
relation  of  landlord  and  tenant 
must  be  shown,  and  then  the  tenant 
is  not  permitted  to  dispute  the  land- 
lord's title.  This  is  a  universal  rule. 
Handle  v.  Sutton,  43  Md.  G5  ;  Math- 
ews V.  Morris,  31  Ark.  225.  And 
so  a  justice  of  the  peace  has  juris- 
diction in  an  action  for  damnares  to 
real  estate,  brought  by  a  lessor 
against  a  lessee,  since  such  action 
docs  not  include  any  tiuestion  of 
title.    Taylor  ».  Koshetz,  88  111.  479. 

(AlKoon  r.  Mazuzan,  6  Hilf.  44. 

((•)Ehle  r..  Quackenboss,  Id.  537. 

(r?) Heritage  r.  AVilfory,  58  Pa.  St. 
1.S7. 

l«')Elliutt  r.  Black,  45  Mo.  .373. 


JURISDICTION    OF    JUSTICES    OF    THE    PEACE.  SSU 

But,  in  Wisconsin,  title  to  land  includes  a  title  to  a  divis- 
ion fence,  the  fence  being  regarded  a  part  of  the  realty. (7) 
Possession  of  land  is  there  regarded  as  distinct  from  title, 
and  it  may,  therefore,  be  passed  upon  by  a  justice,  in  an 
action  of  entry  and  detainer,  where  no  question  of  title  arises, 
the  entry  having  been  forcible,  and  not  under  a  bona  fide  claim 
of  colorable  title.  In  other  words,  where  the  conflict  is  only 
one  of  possession,  and  not  of  title,  a  justice  has  jurisdiction, 
as  a  general  iu\e.(g) 

In  Indiana  it  is  held  that  a  proceeding  to  assess  damages 
for  the  construction  of  plank-roads,  etc.,  does  not  involve  a 
question  of  title  to  lands,  (/t)  so  as  to  exclude  jurisdiction. 

In  Vermont  it  is  even  held  that  the  giving  of  a  quitclaim 
deed  does  not  import  title  to  land ;  and,  therefore,  that  if  the 
declaration  in  an  action  of  covenant  alleged  that  the  giving 
of  a  quitclaim  deed  was  the  consideration  of  the  covenant, 
the  jurisdiction  of  a  justice  of  the  peace  would  not  be  ousted 
in  such  action,  (t) 

In  New  York  a  right  to  put  in  a  plea  of  title  may  be  waived 
by  proceeding  in  the  cause  before  a  justice. (J)  And  even  a 
plea  of  title  put  in  properly  does  not  oust  the  jurisdiction,  in 
an  action  of  debt  for  a  penalty  for  not  removing  an  obstruc- 
tion in  a  highway,  because  it  is  the  duty  of  the  justice  to 
decide  whether  the  plea  is  appropriate  to  the  action  or  not. (A) 

In  Maine  an  action  of  trespass  qaare  da usumf regit  cannot 
be  maintained  before  a  justice  if  title  is  pleaded ;(/)  but  if  the 
case  thus  goes  to  the  court  of  common  pleas,  and  thence,  by 
demurrer,  to  the  supreme  judicial  court,  the  defendant  will 
not  be  allowed  in  the  latter  court  to  add  any  other  plea  which 
could  have  been  tried  by  the  justice. (///) 

In  Massachusetts  it  has  been  held  that,  where  the  plea  was 
that  the  defendant  entered  into  his  own  close,  adjoining  that 
of  the  plaintiff,  and  there  built  a  fence,  etc.,  the  justice  had 

(/)Murrayv.  Van  Dc'rlyn,24  Wis.  (/)Quiml«y     «.     Hart,    If.    .lolins. 

67.  *304. 

(.9)Wintcrfield  v.  Stiiuss,  Id.  39s.  (/.jb'leet  «.  Voim.u-j,  7  Wciid.  i!lil. 

(k)NoiTlstown,  etc.,  v.  Burkct,  20  {IjLov/  v.  Uoss,  :;  (irccnl.  'I'tn. 

j^j    53  (m)C<)pcl;ind    »).    Bean,  9  (ircenl. 

(i)Judevine  v.  Holton,  41  Vt.  :J51.  19. 


300  JURISDICTION    OF    JUSTICES    OF    THE    PEACE. 

jurisdiction. (»)  But  a  plea  that  the  locus  in  quo  v^as  a  high- 
way ousts  the  jurisdiction. (o)  Evidence  of  a  right  of  way 
cannot  be  given  under  the  general  issue,  however.  The  plea 
must  be  special.  (j:>) 

In  Vermont  it  has  been  held  that,  where  an  action  is  brought 
for  obstructing  a  part  of  the  public  road  laid  through  the  de- 
fendant's land,  the  title  is  not  involved,  essentially,  so  as  to 
oust  jurisdiction, ((/)  Again,  held  that  manure  lying  upon 
the  soil  where  first  dropped  is  a  part  of  the  soil,  but  not  so 
if  it  has  been  collected  for  use  elsewhere.  And,  in  the  latter 
case,  trover,  before  a  justice  of  the  peace,  may  be  maintained 
1»3'  a  vendor  against  a  vendee. (r) 

In  Maryland  a  vendor  may  bring  an  action  against  the 
vendee  of  land  for  the  purchase  money,  before  a  justice  of  the 
peace,  if  the  contract  is  not  still  executory.  But  if  a  deed 
has  not  been  given  and  accepted,  such  action  cannot  be 
brought,  because  then  the  plaintiff  must  prove  that  he  has. 
good  title  to  the  land.     Cole  v.  Iltjnes,  46  Md.  185. 

In  Iowa  a  mere  plea  of  title  cannot  oust  the  jurisdiction. (.s) 
Moreover,  where  a  petition  chxims  damages  for  breaking  down 
trees,  it  has  been  held  that  the  plaintiff  is  not  confined  to  the 
value  of  the  trees  destroyed,  but  can  recover  for  the  conse- 
quent injuries  to  the  realty. (f) 

In  Ohio  it  is  held  that,  under  the  liquor  law,  a  justice  of 
the  peace  has  no  jurisdiction  of  an  action  brought  against  the 
owner  or  lessee  of  the  premises  where  liquor  is  sold ;  such  an 
action  drawing  into  question  the  title  to  real  estate. (») 

In  New  Jersey  the  jurisdiction  does  not  attach  in  case  of 
obstruction  to  a  private  road.  The  court  say:  "To  maintain 
the  action  the  plaintiff  must  prove  not  only  the  obstruction, 
but  his  right  to  use  the  way  without  obstruction.  He  must 
prove  his  right  of  way.  That  is  not  a  thing  corporate,  an 
object  of  the  senses,  but  an  incorporeal  hereditament;  aright 

(//)Wi)od    V.    rrcscoti,    2    .Mass.  (r)Frencli  <i.  Freeinun,  Id.  93. 

174.  (.n)Cox  v.  Gr;Uia:n,  3  Claruc,  347. 

(ojSpear    v.    Bicknell,     5     Mass.  (^)Du<i-an  r.  Hunt.  29  la.  447. 

124.  (M)B()\verhi  o.  IV-iueioy,  21  O.  ^^t. 

(/>)Slrout  V.  Berry,  7  Mass.  385.  184. 

(7)Bcll  V.  Frouty,  43  Vt.  279. 


JURISDICTION    OF    JUSTICES    OF    THE    PEACE.  391 

issuing  out  of  a  thing  corporate;  a  thing  lying  not  in  livery, 
but  only  in  grant;  a  right  that  may  be  enjoyed  without  the 
exclusive  possession  of  the  land.  To  prove  this  right  the 
party  must  exhibit  documents  showing  a  grant,  or  give  evi- 
dence of  such  continued  enjoyment  as  implies  a  grant.  Tiiis 
is  title  in  its  full  sense.  Such  proof  is  not  competent,  in  that 
court ;  and  the  cause  requiring  it  is,  by  the  statute,  not  within 
its  jurisdiction. "(i') 

In  New  York,  where  a  plank-road  company  sues  for  toll,  the 
defendant  cannot  be  allowed  to  raise  the  question  of  title 
unless  he  gives  notice  thereof  in  his  answer.  (?(;) 

In  Vermont  an  account  between  tenants  in  common  of 
land  is  not  within  the  jurisdiction,  because  therein  the  de- 
fendant might  plead  that  be  never  was  bailitf  or  receiver  for 
the  plaintiff,  and  thus  bring  in  the  question  of  title. (a;) 

In  actions  quare,  etc.,  in  that  state,  a  justice  may  try  title 
provided  the  claim  is  not  more  than  twenty  dollars. 

In  New  Hampshire  an  action  of  debt  under  the  statute  was 
brought  for  cutting  trees.  The  plea  was  that  the  defendant 
lawfully  cut  the  trees  while  he  was  in  possession  under  a 
lease  from  the  plaintiff.  The  reply  was  that  the  lease  had 
been  cancelled  befpre  the  trees  were  cut.  It  was  held  that 
this  replication  brought  the  title  into  question,  and  ousted  the 
jurisdiction  of  the  justice. (?/)  But  in  an  action  for  cutting 
trees,  real  estate  title  is  held  not  to  be  necessarily  involved, 
in  Indiana.      Deacon  v.  Poicers,  57  Ind.  4S0. 

§  391.  In  the  District  of  Columbia  justices  of  the  peace  are 
nominated  by  the  president,  and  confirmed  by  the  senate. 
They  are,  therefore,  held  to  be  ofiicers  of  the  United  States 
government,  in  such  a  sense  as  to  exempt  them  from  the  obli- 
gation to  perform  military  duty,  under  statutes  to  that  ef- 
fect.(^)  And  where  a  magistrate  is  found  acting  as  one,  lie 
is  to  be  presumed  properly  qualified. (nt) 

(«))()sl)orn(i  V.  J>iitc)u!r,   2   Dutcli.  (//j.Morsc  «.  Davis,  4  Foster,  JT)!). 

3X0,  {^)^Vise    v.    Willicrs,    .']    Craiuli, 

(w)Fr(,'(loniii,     etc;,     v.     Uait,    27  •■!:i(). 
Barb.  214.  ((()l>i)llman  ik  Swailwuut's  Ca.sc, 

(j:)Tliaycr  v.  Montgomery,  2(J  Vt.  4  Craiu-h,  75. 
491. 


302  JunisDicTioN  of  justices  of  the  peace. 

§  392.  It  has  been  held  that  the  same  technical  precision 
will  not  be  required  either  as  to  pleadings,  or  evidence,  in 
proceedings  before  a  justice  of  the  peace,  that  is  uecessarj'  in 
a  court  of  record. (/^)  And  he  is  not  answerable  in  a  civil 
suit  for  error  in  judgment,  however  gross,  if  he  has  jurisdic 
tion  of  the  cause. (c)  Nor  is  he,  in  any  case,  indictable  for 
mal-aduiinistration,  although  he  may  be  liable  to  impeach- 
ment. (^/) 

§  3l>3.  As  to  process,  he  may  proceed  for  offences  com- 
mitted in  liis  presence  without  any  comj)laiut  or  warrant ;  as, 
for  example,  in  profane  swearing,  (e)  And  in  such  case  he 
may  be  authorized  to  require  persons  not  officers  to  make 
arrest,  if  necessary ;  but,  then,  it  has  been  held,  in  New 
Hampshire,  a  regular  complaint  and  warrant  must  be  made 
out  and  served  by  a  proper  ofticer.(/)  But,  probably,  the 
general  rule  is  otherwise,  as  these  subsequent  forms  wonld 
seem  to  be  quite  supartluous.  In  Massachusetts  he  may,  in 
cases  of  strict  necessity  onl}',  direct  a  warrant  to  a  private 
person,  the  necessity  to  be  expressed  in  the  warrant  itself,  (r/) 
And  in  Vermont  a  justice  may  deputize  an  officer  to  serve  a 
writ,  where  it  appears  that  service  may  fail  for  want  of  an 
officer  available  in  time.  And  in  Illinois.  But  the  person 
must  be  appointed  by  name,  and  the  justice  cannot  leave  a 
writ  vacant,  to  be  filled  up  by  the  plaintiff  as  to  the  deputy.(/*) 
A  justice  cannot,  of  course,  on  general  principles,  issue  a 
warrant  for  an  oft"ence  commited  in  another  state. (i) 

§  394.  x\s  to  venue:  a  justice  may  be  authorized  to  act 
judicially  outside  of  the  town  for  which  he  was  elected.  Thus, 
in  1813,  the  statute  of  New  York  provided  that  "justices  of 
the  peace  must  reside  in  the  town  for  which  they  were  chosen, 
and  shall  not  try  a  civil  cause  in  any  other  town,  except  in 
cases  otherwise  provided  for  by  law."    A  case  came  up  in  the 

(6)Unsier  «.  Trumpl)()ur,  5  Wend.  (e)Holcomb   v.  Coruish,  b   Couu. 

274.  375. 

(c)HolL-oinb   V.  Cornish,  8   Conn.  (/)Bissell  v.  Bis.sell,  3  N.  H.  521. 

375.  (5r)Common\vealth    v.    Foster,    1 

(a)State  v.  Campl.ell,  2Ty]er,(Vt.)  Mass.  4'.t3. 

182.  (/OKellog.^■•s  Case,  (J  Vt.  510. 
(t)Ptoi)le  V.  Wright,  2  Caines,  (X.  Y.)  213. 


JURISDICTION    OF    JUSTICES    OF    THE    PEACE.  303 

supreme  court  wherein  the  court  below  had  decided  that  a 
justice  could  not  act  judicially  out  of  the  town  for  which  he 
was  elected,  and  it  was  said :  "He  may  act  as  conservator  of 
the  peace,  and  exercise  his  criminal  jurisdiction,  anywhere  in 
the  county ;  he  may  send  his  civil  process  into  any  part  of  the 
county,  and  I  find  nothing  to  prevent  him  from  issuing  his 
process  at  any  place  in  the  county;  but  he  shall  not  hold  a 
court  for  the  trial  of  a  civil  cause  out  of  his  own  town,  and  if 
he  removes  from  the  towai  in  which  he  was  elected  he  forfeits 
his  office." (^'j  But  at  a  later  period,  (1818,)  a  justice  was 
autliorized  to  act  anywliere  in  the  county  in  the  trial  of  civil 
causes  ;  again,  in  ISoO,  he  was  restricted  anew  to  the  town.(^") 
In  Texas  it  has  been  decided  that  parties,  b}^  consent,  cannot 
confer  jurisdiction  of  their  cause  to  a  justice  out  of  his  pre- 
cinct. (/)  In  the  absence  of  an  empowering  statute,  doubtless, 
the  authority  is  strictly  local ;  but  is  generally  co-extensive 
with  the  county  as  to  the  issuing  of  writs,  although  not  as 
to  the  place  of  trial.  Cain  v.  Sim2:)soii.,  53  Miss.  524;  Klingel 
V.  Palmer,  42  la.  107.  Sometimes  jurisdiction  is  strictly 
confined  to  residents  of  the  county,  (Hamilton  v.  MiWiouse, 
46  la.  74,)  and  even  as  to  an  action  in  attachment,  (Gates  v. 
War/ner,  46  la.  355,)  and  even  although  jurisdiction  in 
actions  of  attachment  and  replevin  is  not  limited  to  the 
toiniship  where  the  parties  reside  or  the  property  is  found. 
Knowles  v.  Pickett,  46  la.  503.   • 

In  Illinois  it  is  held  that  a  justice  of  the  peace  may  take 
jurisdiction  of  an  action  for  damages  done  to  real  property 
in  another  county,  provided  the  parties  reside  in  tlie  magis- 
trate's county.     Pibjrlm  v.  McUer,  1  111.  Ajtpel.  448. 

In  Colorado  it  is  held  that  a  statute  requiring  that  suit 
must  be  brought  in  the  township  where  the  debtor  resides, 
does  not  applv  to  debtors  residing  out  of  the  state,  and  that 
such  non-resident  debtors  may  be  sued  wherever  found  in 
the  state.      Wagner  v.  Hallock,  3  Col.  176. 

In  Wisconsin  jurisdiction  is  lost  by  calling  a  case  for  trial 

(j)Guernsey  v.  Lovell,  9   Weud.  (/,)S(liiorpcl  v.  Taylor,  10  Wend. 

S22.  "  liUC. 

(Z)Fostcr  V.  McAdams,  9  Tex.  542. 


31)4  JURISDICTION    OF    .TUSTICES    OP    THE    PEACE. 

at  a  place  different  from  that  specified  in  the  summons; 
and,  also,  by  trying  it  at  the  office  of  the  plaintiff's  attorney, 
althouiih  the  place  be  designated  in  the  summons. (m) 

Venue  may  be  changed  in  modes  prescribed  by  statute,  and 
where  the  justice  to  whom  cliange  is  made  refuses  to  act,  and 
then  the  orighial  justice  takes  back  the  case  and  tries  it,  the 
judgment  is  void  for  want  of  jurisdiction. («) 

It  appears,  moreover,  that  a  change  of  venue  may  operate 
as  an  estoppel.  Thus,  where  a  suit  of  replevin  was  brought 
before  one,  as  a  justice  of  the  peace,  and  a  change  of  venue 
was  taken  to  a  justice,  and  afterwards  the  case  was  appealed 
to  the  circuit  court,  it  was  held  that  the  party  taking  the 
change  of  venue  could  not  be  allowed  to  move  a  dismissal  of 
the  appeal,  on  the  ground  that  the  first  person  was  not  a  jus- 
tice at  all,  because  he  had  waived  all  objection  as  to  jurisdic- 
tion by  going  to  trial  before  the  second  person,  who  was 
really  a  justice,  to  whom  he  had  referred  the  matter  on  change 
of  venue. ((j) 

§  8!>5.  Where  a  statute  forbids  any  sheriff  from  drawdng 
up  or  filing  any  writ,  etc.,  an  alteration  of  the  date,  or  return 
day,  of  a  justice's  summons,  not  made  by  the  justice  himself, 
or  by  another  in  his  j^resence,  and  under  his  direction,  ren- 
ders the  summons  void,(p)  although,  of  course,  that  or  any 
defect  maybe  waived  by  an  appearance  without  objectiofi,(g') 
unless  there  is  no  jurisdiction  of  the  subject-matter;  for  in 
this,  as  in  all  such  cases,  in  all  courts,  the  rule  prevails  that 
appearance  cannot  confer  jurisdiction.  Borger  v.  Moore,  42 
la.  645.  The  appearance  must  be  personal,  or  else  must  be 
expressly  authorized,  for  even  attorneys  are  not  officers  of  a 
justice's  court,  and  so  cannot  therein  bind  a  party  by  an  un- 
authorized appearance.     Spernj  v.  Reijnolds,  65  N.  Y.  183. 

In  Minnesota  it  is  held  that  a  summons  issued  in  blank 
as  to  the  return  day  is  void;  and  if  any  one  else  fills  up  the 
blank,  and  the  writ  is  then  served,  this  service  confers  na 
jurisdiction.      Cra'ujhedd  v.  Martin,  25  Minn.  44. 

(/i))Xc'wcomb   V.   Town,    etc.,   24  (o)Graves  v.  Slioefelt,  60  111.  462- 

Wis.  45:1.  (/>)Garrison  v.  Hoyt,  25  Mich.  509. 

(/,)Connell  v.  Wilson, 33  la.  147.  (fyjTyrrell  v.  Jonas,  18  Minn.  312. 


JUEISDICTION    OF    JUSTICES    OF    THE    PEACE.  395 

A  summons  may  be  signed  by  the  initials  of  the  first 
names,  as  well  as  by  writing  out  the  full  name.(>) 

After  a  judgment  has  been  entered,  the  constable's  return 
cannot  be  impeached,  collaterally,  in  order  to  dispute  the  juris- 
diction and  defeat  the  judgment.  If  a  return  is  really  false, 
it  must  be  impeached  only  in  a  direct  proceeding,  by  prosecu- 
tion of  the  officer,  or  on  appeal,  (.s) 

In  New  York,  if  a  summons  be  served  on  two  defendants, 
the  name  of  one  of  them  cannot  be  subsequently  dropped  in 
the  proceedings — the  justice  having  no  power  of  amendment 
of  this  kind,  and  no  power,  therefore,  to  permit  a  plaintiff  to 
declare  against  only  one  of  two  joint  defendants  who  have 
been  served. (f) 

Where  a  justice  deputizes  one  to  serve  a  summons,  he  must 
do  it  in  the  same  manner  in  which  a  regular  ofdcer  does  it, 
and  therefore  make  a  return  in  writing.  And  where  such  a 
one  appeared  on  the  return  day,  and  made  oath  that  he  had 
served  the  writ,  but  there  was  no  return  indorsed  on  the  sum- 
mons, it  was  held  the  justice  acquired  no  jurisdiction. (?6) 

§  396.  A  justice  may,  of  course,  be  disqualified,  by  rela- 
tionship, or  interest.  In  Maine  it  is  held  that  a  justice  re- 
lated to  a  party  within  the  sixth  degree  is  disqualified  to  take 
a  deposition  in  the  cause,  and  is,  therefore,  liable  in  trespass 
for  committing  a  witness  who  refuses  to  testify  therein. 
Call  V.  Pike,  66  Me.  350.  If,  however,  the  relationship  is  by 
afiinity,  the  disqualification  ceases  on  the  dissolution  of  the 
marriage,  even  if  there  remains  living  issue.  Trout  v.  Draw- 
horn,  57  Ind.  570.  As  to  interest,  a  justice  of  the  peace 
cannot  issue  a  search  warrant  for  his  own  property;  and  if 
he  does  so,  the  writ  affords  no  protection  to  the  officer  who 
serves  it.  Jordan  v.  Henri/,  '2'-2  Minn.  245.  But,  where  a 
corporation  sues,  it  is  no  valid  objection  that  the  justice  is 
related  to  a  stockholder  therein  ;(>')  nor  is  it  an  objection  that 
a  justice  is  a  rated  inhabitant  of  the  town  into  the  treasury 

(r)\V()()(l  /•.  Fiilii.ui,  4  Zal.ris.  S!S.  (wj.Iackson  •/:.  *Slicr\V(i(Kl,  .Id  IJarl). 

(.•<)I{.  H.  .-.  Punly,  ]S  l]:irl).  ')74.  ■'v")";. 

(/)Giliuorf    ('.    Jacobs,    4s    IJarb.  (/))ScaI•sln^^^■  TiiriipiktJ  Co.  w.  Cul- 

:i.J(>.  ler,  (J  Vt.  :}15. 


396  JUEISDICTION    OF    JUSTICES    OF    THE    PEACE. 

of  wliicb  fines  are  to  l)e  paid  on  conviction. (/r)  This,  how- 
ever, was  formerly  different  in  Massar-husetts,  (1S16;)  (x)  but 
later,  (1S2S,)  it  was  said  that  the  prohibition  did  not  apply 
where  the  fine  went  to  the  state  instead  of  the  town.(//) 

A  singular  disqualification  was  imposed  in  New  York,  in 
1808,  by  statute,  still  continuing,  with  some  modifications; 
namely,  the  keeping  of  a  tavern.  By  an  early  decision,  it 
appears  that  if  a  justice  lived  in  a  tavern,  or  removed  into 
the  end  of  a  houss,  the  other  end  of  w4iich  was  kept  as  a  tav- 
ern, and  there  being  free  communication  from  one  end  to  the 
other,  he  could  not  act.(^)  In  184-5  it  was  held  that  a  jus- 
tice was  not  deprived  oi  jurisdiction  b}^  being  a  tavern  keeper, 
provided  he  was  such  at  his  election,  and  did  not  become  so 
afterwards(Vf) — a  kind  of  semi-evasion  of  the  statute,  it  would 
seem. 

§  ,307.  A  justice  cannot  properly  render  judgment  on  his 
own  knowledge  of  previous  facts.  All  facts  serving  as  the 
basis  of  judgment  must  be  adduced  in  evidence  in  the  legal 
manner. (^)  And  even  where  a  justice  received  a  paper,  to- 
gether with  a  note  purporting  to  have  come  from  the  defend- 
ants, authorizing  him  to  enter  judgment  by  confession,  and  he 
did  according  to  the  request,  it  was  held  that  he  could  not 
legally  enter  judgment  on  his  knowledge  of  the  defendant's 
handwriting. (c)  Such  a  communication,  though  genuine,  I 
think  cannot  properly  authorize  the  entry  of  judgment. 

Nor  can  he  be  sworn  in  a  cause  he  is  trjang  as  a  witness: 
since  a  justice  before  whom  a  cause  is  tiied  must  himself 
swear  the  witnesses,  and  an  oath  administered  to  him,  there- 
fore, by  another  justice,  is  extrajudicial  and  improper, (rf) 
It  seems,  however,  that  it  may  be  admitted  by  consent  of  the 
parties.  ((?) 

§  3{)8.  It  is,  perhaps,  a  general  rule — at  least,  where  jus- 
tices' courts  are  not  regarded  as  courts  of  record — that  a  jus- 

(?c)St:Uc  V.  Batcbelder,  Id.  479.  (/>)I5uilingham  v.  T)eyvv,  2  .Johns. 

(.?•)  Pcarce  v.  At  wood,  13  Mass.  324.  188. 

(//)IIill  V.  "Wells,  6  Pick.  109.  (r):\rartin  v.  Moss.  C  .lolins.  12(). 

(j)Low  y).  Rice,  8  John.s.  409.  (d) Perry    v.    Wcyinan,    1   .lolms. 

(  ')Parraelee  r.  Thompson,  7  Hill,  520. 
77.'  (e)Cobb  v.  Curtis,  8  Johns.  470. 


JURISDICTION    OF    JUSTICES    OF    THE    PEACE.  307 

tice  cannot  enter  a  judgment  by  default  against  a  defendant: 
but  where  a  defendant  does  not  appear  the  plaintiff  must 
prove  his  cause  precisely  as  if  there  were  an  actual  defence 
put  in.(/) 

§  399.  In  New  York  a  justice  may  appoint  a  guardian  ad 
litem  for  a  minor  party,  this  being  held  an  incident  to  all 
courts.  (//) 

§  400.  A  justice  has  no  discretion — as  higher  courts  have — 
to  suspend  proceedings  in  an  action  until  the  costs  of  a  for- 
mer suit  for  the  same  matter  are  paid.  In  courts  of  record 
this  may  be  done,  but  on  a  rule  to  show  cause,  and  in  the 
exercise  of  a  large  discretion. (/;)  However,  a  justice  is  not 
wholly  left  without  discretion  as  to  a  cause  on  trial.  And 
where,  in  the  progress  of  a  trial,  he  may  judge  the  presence 
of  any  one  to  be  prejudicial  to  the  interests  of  justice,  it  has 
been  held  he  has  the  right  to  have  him  summarily  removed 
from  the  rooni.(i) 

§  401.  The  usual  distinction  as  to  void  and  voidable  acts 
l^revails  in  regard  to  a  justice  of  the  peace;  namely,  where 
the  justice  has  no  jurisdiction  whatever,  and  undertakes  to 
act,  his  proceedings  are  coram  non  jiidice;  but  if  he  has  juris- 
diction, and  errs  in  exercising  it,  the  proceedings  are  only 
voidable,  (J)  and  that  by  a  direct  proceeding. 

§  402.  Jurisdiction  is  usually  limited  by  amounts,  as  well 
as  the  nature  of  the  subjects  of  controversy.  But  where  there 
is  a  variance  between  the  process  and  the  declaration  as  to 
amount,  it  has  been  held  in  New  York  as  a  mere  matter  of 
form,  and  no  variance  fatal  to  the  cause. (A;)  But  in  Illinois, 
where  there  are  no  paper  pleadings,  the  amount  indorsed  on 
the  summons  governs,  and  a  plaintiff  cannot  take  judgment 
for  anything  beyond  it;(/)  whereas,  in  New  York,  the  declara- 
tion defines  the  jurisdiction. 

A  plaintiff'  may  remit  any  excess  found  by  a  verdict  beyond 

(/)Watkuis  «.  Weaver,  10  .Johns.  (/)Jackson».Wilkinson,17  Johns. 

(.7).M.i(key  r.  (iiay,  2  .Jolins.  I!t2.  (AjDennisont).  Collins,  1  Cow. 111. 

COYoule  «.  BrotJiei-toii.  l(t  .loiuis.  .Vnd  in  Iowa.    Moran  v.  Mnrj)l)y,4» 

JCi.  1''.  <W- 

(/jStale  V.  Coi)p,  1.'.  X.  H.  212.  (/lUadgley  v.  Heald,  1  Gil.  64. 


398  JURISDICTION    OF    JUSTICES    OF    THE    PEACE. 

the  juris(liction(/?()  or  demand,  and  thus  save  his  cause,  and 
have  judgment  entered  for  the  remainder.  But  if  he  retains 
liis  chiim,  the  entering  of  judgment  for  the  jurisdictional 
amount  will  not  save  the  jurisdiction.  Gillett  v.  Richards, 
46  la.  <)52.  Also,  he  may  reduce  the  amount  to  within  the 
limits  of  the  jurisdiction,  by  bona  fide  credits;  and,  in  Ver- 
mont, by  credits  entered  in  the  manner  of  a  remittitur,  with- 
out anything  having  been  paid — the  credits  being  made 
purposely  to  save  the  jurisdiction. (;?) 

And  where  suit  is  brought  upon  a  bond,  of  which  the  pen- 
alty is  beyond  the  jurisdiction,  but  the  demand  is  within  it, 
a  justice  may  entertain  it.(o) 

In  Pennsylvania,  interest,  being  an  incident  only,  may  be 
remitted,  but  not  any  porticm  of  the  principal,  in  order  merely 
to  confer  jurisdiction. (/>) 

In  North  Carolina  it  has  been  held  that  if  a  claim  con- 
taining but  one  item  exceeds  the  jurisdiction,  it  cannot  be 
divided  in  order  to  confer  it ;  but  if  the  claim  consists  of  sev- 
eral items — each  of  the  items  being  within  the  jurisdiction, 
but  the  aggregate  exceeding  it — suit  thereon  may  be  main- 
tained, (r/)  In  Mississippi  costs,  damages,  and  interest  are 
excluded  in  estimating  the  jurisdiction  as  to  amount.  Jack- 
son, V.  Wlittficld.  ;">1  Miss.  202.  In  Illinois  it  has  been  held 
that  a  recovery  may  be  had  on  several  fines  for  violations  of 
an  ordinance  for  the  sale  of  liquors,  provided  the  aggregate 
does  not  exceed  the  limits  of  jurisdiction. (»■) 

If  the  amount  claimed  is  beyond  the  limits  of  a  justice's 
cognizance,  in  general,  a  circuit  court,  on  appeal  thereto,  can- 
not entertain  the  cause. («) 

But,  in  Minnesota,  it  is  too  late  to  object  to  the  jurisdic- 

(7/()Claik  V.  Denme,  :]   Denio,  (N.  (lepciuleiit   debt    in    orcler   to    v^ivv 

Y.)  319.  jui  isdiction.       Peter    v.    Schlosser. 

{n)Hevren  f).  Campbell,  lit  Vr.  23.  SI  Pa.  St.  4.39.    In  :Mis.si.«sippi,  al«<), 

(6')Cult)ertsoii     i\    Toinlinson,    1  this  is  the  rule,  unless  the  debtor 

Morris,  (la.)  404 ;  State?;.  liucky,  51  consents.     Cox  v.  Stanton,  58  Cra. 

Miss.  52^^.  406. 

(pjBower   V.  ^IcCormick.  73   Pa.  ((/)UoykMi.  Hobbins.  71  N.  C.  130 

St.  427.  (/lllarsoldt  v.  PetersliuriT.  fi:!    111. 

And  in  that  state  a  plaint  ill  i^  not  111. 
allcwed  to  credit  a  distinct  and  in-  l^.sjFclt  ti.  Felt,  lit  Wis.  VXo. 


JURISDICTION    OP    JUSTICES    OP    THE    PEACE. 


599 


tioii  of  the  court  to  wliich  appeal  is  made,  after  judgment. 
Lee  y.Panoft,  25  Minn.  128. 

An  offset  by  plaintiff  against  an  oft'set  by  defendant  is  not 
to  be  counted  in  his  claim,  if  distinct  and  independent,  and 
only  put  in  as  an  answer  to  the  defendant's  offset. (^) 

Where,  in  a  case  of  replevin,  the  value  of  the  property  was 
set  forth  as  within  the  jurisdiction,  and  the  general  issue  was 
joined,  and  it  appeared  by  the  plaintift"'s  own  testimony  tliat 
the  value  was  beyond  it,  it  was  held,  in  Michigan,  that  the 
question  was  not  an  open  one  under  the  general  issue.  (?()  But, 
in  Mississippi,  where  an  action  was  brought  to  recover  dam- 
ages for  the  maltreatment  of  a  mule,  and  the  plaintiff  recov- 
ered to  the  full  extent  of  the  justice's  jurisdiction,  and  the 
defendant  appealed ;  and,  on  the  trial  in  the  circuit  court  on 
the  appeal,  it  was  shown  that  the  value  of  the  mule  was  more 
than  had  been  recovered  below,  the  circuit  court  dismissed 
the  cause  for  want  of  jurisdiction  in  the  justice,  which  dis- 
missal was  approved  by  the  supreme  court,  (r) 

§  403,  A  jury  may  be  demanded  by  parties,  and  where  a 
venire  has  been  issued  and  served,  and  the  jury  fail  to  appear, 
it  has  been  held  that  the  justice  has  no  right  to  resume  the 


(<)T:ilbott  «.  Robinson.  42  Vt.  (Ji)S. 

(7/)IIen(ler.soii  v.  Deslie rough,  28 
Mich.  170. 

The  plea  must  be  special.  And 
so,  where  suit  is  brouirht  on  a  re- 
plevin bond,  and  the  defence  relied 
on  is  that  the  actual  value  of  the 
property  was  beyond  the  jurisdic- 
tion of  the  justice,  it  is  held,  in 
Indiana,  the  plea  must  be  special, 
hecau.se,  in  the  absence  of  anything 
to  show  the  contrary,  it  will  be  pre- 
sumed that  the  amount  was  within 
jurisdiction,  (Tyler  «>.  IJowlus,  r)4 
Ind.  333,)  provided  the  affidavit  in 
the  original  cause  stated  the  value, 
and  within  tlie  jurisdiction.  Ibid  ; 
Darling  v.  Conklin,  42  Wis.  47.S. 

(») Askew  V.  Askew,  4it  Miss.  307. 

And  so,  in  Illinois,  where  a  jury 
finds  the  value  of  the  property  in  a 


replevin  suit  to  be  more  than  the 
jurisdictional  amount  of  $2o0,  it 
ousts  the  jurisdiction,  and  judgment 
must  be  given  for  the  defendant ; 
and  even  on  appeal  to  a  superior 
court,  where  the  trial  is  de  novo. 
Kirkpatrick  v.  Cooper,  89  111.  210. 
The  rule  is,  in  general,  that  where 
a  justice  has  not  juri-sdiclion  an  ap- 
peal cannot  confer  it  on  the  supe- 
rior court  in  the  cause  pending. 
Allen  »'.  Belcher.  3  Gil.  ^M:  Peopli- 
f).  Skinner,  13  111.  287;  Downing  '). 
Florer,  4  Vo\.  210.  Hut  it  is  diller- 
ent  in  Alabama,  where  the  trial  in 
the  appellate  court  is  de  novoy  and 
the  action  is  for  tiie  recovery  of  a 
chattel  in  specie.  Gla/.e  «.  Blake,  "<6 
Ala.  385  ;  overruling  former  cases. 
This  .seems  to  me  the  better  rule. 


4^00  JURISDICTION    OF    JUSTICES    OF    THE    PEACE. 

cause  juid  try  it  himself,  against  objection, (/f)  unless  the  venire 
was  delivered  to  the  party  demanding  the  jury,  instead  of  to  the 
officer,  and  the  party  fails  to  return  the  venire,  in  which  case 
his  fraud  in  suppressing  the  writ  is  held  to  operate  as  a  waiver 
of  the  demand  for  a  jury,  so  that  the  justice  may  proceed  to 
hear  the  cause  himself. (r)  If  a  venire  is  handed  to  an  officer, 
who  fails  to  return  it,  another  may  issue,  unless  the  demand- 
ant goes  to  trial,  which  will  operate  as  a  waiver  of  trial  by 

Jury-(^) 

A  justice  cannot,  however,  challenge  the  panel,  of  his  own 
motion,  and  issue  a  new  venire,  when  no  exception  has  been 
taken  by  either  party.  (>)  Nor  can  he  withdraw  a  case  from  a 
jury  to  which  it  has  been  submitted ;(«)  nor  can  he  set  aside 
a  verdict  as  against  the  evidence; (6)  nor  arrest  judgment,  or 
grant  a  new  trial. (c) 

But,  in  New  York,  a  justice  ma}-,  on  request  of  a  jury,  after 
they  have  retired,  give  them  further  instructions  on  the  law 
of  the  case,  provided  the  parties  are  i^resent,  or  have  an  op- 
portunity of  being  present.  (tZ) 

§  404.  A  judgment,  to  be  valid,  must,  in  general,  be  imme- 
diately entered. (>)  But,  jurisdiction  having  been  acquired,  it 
will  be  presumed  that  judgment  was  entered  directly  on  final 
submission,  in  the  absence  of  an  affirmative  showing  to  the 
contrary.  Moore  v.  Reeves,  47  la.  30.  And  it  seems  proper 
that,  in  a  difficult  case,  a  reasonable  time  should  be  allowed 
for  consideration  and  advisement,  and  that  a  justice  may  enter 
his  judgment  at  a  subsequent  day,  giving  the  parties  due  no- 
tice of  his  action.  Reeves  v.  Davis,  80  N.  C.  212.  But  the 
same  strictness  does  not  apply  to  the  proceedings  while  in  pro- 
gress, and  it  has  been  held  that  where  a  cause  was  adjourned 
until  1  o'clock  p.  m.,  of  a  day  certain,  and  on  that  day  the 

(/r)Sebring  v.  Wbet-dou,  S  Johns.  (6)Vau  Valkenljurgh  v.  Evertson, 

400.  13  Wend.  76. 

(j)('oon  1'.  Snyder,  19  .Johns.  384.  (r)Felter   r.    Mulliner,    2    .Tohn.s. 

(//)Blanchard  v.  Riohh',  7  Johns.  181;  Helmick  c.  Johnson,  1  Morris, 

30,-.  (la.)  89. 

(?)Cross  V.  Moulton,  15  Johns.  469.  ((f)liogers  v.  Moulthrop,  13  Weud. 

(a)  Young  v.  Hubbell,  3  Johns.  430.  274. 

(e)Sibley  v.  Howard,  3  Denio,  (N.  T.)  172. 


JURISDICTION    OF    JUSTICES    OF    THE    PEACE.  401 

justice  is  detained  by  official  duties  until  5  o'clock  p.  m.  of  that 
day,  he  may,  at  the  latter  hour,  proceed  to  try  the  cause,  even 
although  the  defendant  has  left  the  place  of  trial.  (/) 

§  405.  One  justice  cannot  take  the  recognizance  of  a  pris- 
oner under  a  mittimus  of  another  justice,  on  the  way  to 
prison,  (^)  nor  afi;er  he  has  been  placed  in  the  prison. (/*)  Nor 
can  a  justice  issue  an  execution  on  the  judgment  of  another 
who  still  remains  in  office  and  retains  his  docket,  (i) 

§  406.  I  do  not  enter  into  any  full  investigation  of  the  sub- 
jects of  the  jurisdiction  of  justices  of  the  peace,  since  there 
is  no  well-defined  limit  as  to  what  powers  a  legislature  may 
bestow  upon  them.  Once,  in  New  York,  a  justice  even  had 
jurisdiction  of  an  action  on  the  case  for  enticing  away  the 
wife  of  the  plaintiff ;  (J)  and,  also,  admiralty  jurisdiction — the 
law  providing  that  he  might  entertain  "all  actions  for  as- 
sault and  battery,  or  false  imprisonment,  done  or  committed 
by  any  master  or  commander  of  any  ship  or  vessel,  in  any 
merchant  service,  upon  any  officer,  seaman,  or  mariner,  on 
the  high  seas,  or  in  any  foreign  port  or  place  where  such  ship 
or  vessel  may  then  be,  of  which  the  ordinai'y  courts  of  law 
now  have  cognizance,  notwithstanding  the  damages  sustained 
or  demanded  by  reason  thereof  shall  exceed  fifty  dollars" — 
although  he  had  not  jurisdiction  of  such  assault  happening 
in  any  port  of  the  United  States. (^•)  A  jurisdiction  so  capri- 
cious cannot  be  defined  or  explained.  I  suppose,  however,  it 
is  safe  to  say  that  in  no  instance  has  a  justice  of  the  peace 
jurisdiction  in  a  slander  or  libel  case,  or  a  case  of  breach  of 
promise  of  marriage,  or  divorce,  or  for  the  final  trial  of 
felonies. 

(/)Hunt  «.  Wickwiie,  10   Wtiiid.  {g)^[atc  v.  Berry,  s  Gi-cciil.  179. 

102.     However,  it  .seems  a  justice  (/i)Cummc)iivv.  «.  CaniuLi,  i;J  Pick, 

loses   jurisdiction    by  an   adjourn-  SB. 

ment  unless  his  docket  shows  the  (^■)Cliffo^d  v.    Cabincss,    1    Dana, 

day,  and  hour,  and  place  to  which  (Ky.)  334. 

the   cause   is  adjourned       Braiirn-  (j)Chase  «.  Hale,  s  .lolins.  4(11. 

stead  V.  Ward,  44  Wis.  591.  ^A^viug  v.  Parks,  I'.l  Johns.  375. 


v.l— 20 


40'2  COMMISSIONERS    OF    HIGHWAYS EMINENT    DOMAIN. 


CHAPTEE    XI. 

COMMISSIONERS    OF  HKIHWAYS  ;    AND    HEREIN  OF  EMINENT    DOMAIN. 

§  407.  Special  judicial  powers. 

408.  Kecoid  evidence  of  jurisdiction. 

409.  Statutes  mu«t  be  .strictly  pursued, 

410.  Eft'ect  of  exceeding  jurisdiction. 

411.  Void  and  voidarjie  acts. 

412.  No  pcjwer  over  navigable  streams. 

413.  Highwaj'^  crossing  railroad. 

414.  Altering  highways. 

415.  Ellecl  of  wrongfudy  laying  out  highway. 

416.  Estoppel  as  to  jurisdiction. 

417.  Terms. 

418.  Notice. 

419.  Disqualifications. 

420.  Nature  of  eminent  domain. 

421.  The  taking  of  property. 

422.  The  primary  right  is  in  the  legislature. 

423.  Province  of  a  jury  as  to  the  taking. 

424.  Public  use — how  decided. 

425.  What  a  public  use  is. 

426.  Delegation  of  power  strictly  construed, 

427.  Discretion  of  officers  after  power  delegated. 

428.  Presumptions  as  to  the  exercise  of  jurisdiction. 

429.  Kinds  of  property  suliject  to  the  right. 

§  107,  Bodies  may  be  constituted  ad  libitum,  having  special 
judicial  powers,  in  regard  to  specific  sub,ects.  Perliapstbe 
most  important  of  these  are  commissioners  of  highways, 
w'hose  powers,  however,  are  sometimes  assigned  directly  to 
county  courts,  and  who,  in  such  case,  retain  only  ministerial 
functions.  And,  in  Maryland,  it  has  been  held  that  courts 
exercising  these  powers  do  not  hold  them  by  virtue  of  their 
general  authority,  as  courts  of  law,  but  bj'  virtue  of  a  special 
delegation,  and,  moreover,  that  a  writ  odf  error  will  not  lie  to 
a  court  vested  with  special  jurisdiction,  and  not  proceeding 
according  to  the  forms  of  the  common  law,  although  courts 


COMMISSIONERS    OF    HIGHWAYS EMINENT    DOMAIN.  403 

will  incidentally  inquire  into  the  validity  of  the  judgments  of 
special  jurisdictions  whenever  such  inquiry  becomes  neces- 
sary in  the  ordinary  exercise  of  their  powers. (a)  And  it  has 
been  held,  also,  that  the  strictest  technical  exactness  is  not 
requisite,  in  the  proceedings,  as  to  terms  and  language  em- 
l^loyed,  provided  the  intention  is  plain,  and  the  commission- 
ers have  jurisdiction.  And  so,  where  the  word  "road"  instead 
of  "highway"  is  used  in  the  record,  or  the  petition,  the  juris- 
diction does  not,  therefore,  fail ;  nor  if  the  description  of  the 
road  located  should  be  different  from  the  language  of  the 
petition,  if  it  is  substantially  the  same.(/>) 

§  4:08.  However,  the  jurisdiction,  and  the  facts  conferring 
it,  must  be  shown  on  all  the  records.  And,  otherwise,  pro- 
ceedings must  be  quashed.  Shtie  v.  Conir,  41  Mich.  638; 
Milton  V.  Coinr,  40  Mich.  229.  And  one  of  the  most  im- 
portant jurisdictional  facts  may  be  the  presentation  to  the 
court,  or  commissioners,  of  an  application  made  by  a  qualified 
person. (c)  Yet  sometimes  proof  may  be  admitted  to  show 
the  jurisdiction,  or  the  want  of  it,(c)  but  the  rule  is  as  just 
stated,  that  the  records  should  show  it;  although,  especially 
where  commissioners  are  not  required  to  keep  a  record,  parol 
evidence  of  the  action  may  be  given,  and  proof  that  they  met 
and  conferred,  and  agreed  upon  a  plan,  and  delegated  power 
to  one  of  their  number  to  carry  out  the  plan,  is  enough  to 
sustain  the  defence  of  who  acted  under  such  commissioner.  ((/) 

§  409.  But  the  mode  prescribed  by  statute  must  always  be 
pursued  substantially,  if  not  literally,  or  else  the  proceeding 
will  be  coram  non  jadice  and  void ;  and  where  a  board  is  not 
empowered  to  lay  out  a  road  of  undefined  width,  an  order 
establishing  such  a  road  is  null,  and  of  no  effect. (e)  How- 
ever, when  jurisdiction  once  attaches,  subsequent  error  will 
not  invalidate,  except  that  the  error  may  reverse  in  the  proper 
manner.  The  principle  is  thus  stated :  "Unless  the  com- 
missioners had  jurisdiction  to  authorize  the  commencement 

(r^Savage  Mfg.  Co.  v.  Owings,  3  (<-)IIaiTington  v.  People,  6  Baii). 

Gil.  407.  611;   partly  overruled  in  Gould  v. 

(/>)\Yiii(i]iain    v.    Coni'rs,    2G   Me.       Glass,  19  Barb.  IT.). 
40'.),  ((Z)Smith  v.  Ileliner,  7  Barb.  422. 

(r)  White  V.  Conover,  r>  JJlackf.  4U2. 


404  COMMISSIONERS    OF    HIGHWAYS EMINENT    DOMAIN. 

of  their  proceedings  they  would  be  void.  A  general  jurisdic- 
tion merely,  by  law,  over  the  subject-matter  is  not  enough. 
They  can  only  have  it,  in  the  particular  case  in  which  they  are 
called  upon  to  act,  by  the  existence  of  those  preliminary  facts 
which  confer  it  upon  them.  Their  doings  are  ineffectual, 
unless  they  have  power  to  commence  them,  and  may,  in  such 
cases,  be  avoided  collaterally.  But  having  jurisdiction,  if 
their  subsequent  acts  are  erroneous,  they  are  valid  until 
vacated  by  certiorari.  Baker  v.  Rtinneh,  3  Fair.  235 ;  Good- 
win V.  Halloicell,  Id.  271;  12  Mete.  208;  Sumner  v.  Porker, 
7  Mass,  79;  Haskell  v.  Haven,  3  Pick.  404;  Wales  \.  Willard, 
2  Mass.  120;  Loring  v.  Bridge,  9  Mass.  124;  Davell  v.  Davell, 
13  Mass.  264;  Frumpton  v.  Pettis,  3  Lev.  23;  the  case  of  The 
Marshalsea,  10  Co.  68." 

§  410.  Exceeding  jurisdiction,  in  any  particular,  may  viti- 
ate the  whole  proceedings;  and  must  do  so,  if  the  excess 
is  not  separable.  Where  county  commissioners  laid  out  a 
turnpike,  as  a  highway,  and  thereon  required  a  town  to  tend 
the  draw  in  a  bridge  over  a  navigable  stream,  and  keep  lights 
on  the  bridge,  as  the  turnpike  company  had  been  required  to 
do  by  their  charter,  the  requirement  was  held  to  be  fatal  to 
the  whole  proceedings.  The  court  remarked:  "The  commis- 
ioners  surely  had  no  authority  to  impose  this  burden  on  the 
town.  Towns  cannot  be  required  to  do  an}'  more  in  regard 
to  roads  than  they  are  required  by  statute  to  do.  Their  duties 
in  this  respect  are  wholly  statutory,  and  there  certainly  is  no 
statute  requiring  them  to  tend  a  draw  in  a  bridge  over  a  navi- 
gable river.  A  town  may  l)e  required  to  make  a  road,  and 
every  town  is  obliged  to  keep  the  highways  within  its  bounds 
safe  and  convenient  for  travelers.  All  the  duties  of  towns, 
in  regard  to  roads,  relate  to  the  travel  along  the  highway; 
but  tending  the  draw  in  this  bridge  was  not  for  the  benefit  of 
the  travel  on  the  road,  but  wholly  for  the  convenience  of  the 
navigation  of  the  river.  The  law  imposes  no  such  burden  on 
a  town  for  the  benefit  of  navigation,  and  no  such  burden  can 
be  lawfully  imposed  by  the  commissioners.  The  laying  out 
of  the  whole  road  being  one  entire  act,  and  the  part  imposing 
on  the  town  of  Braintree  the  dutv  of  tending  the  draw  in  the 


COMMISSIONERS    OF    HIGHWAYS EMINENT    DOMAIN.  405 

Lridge  being  unlawful,  and  being  a  material  part,  which  can- 
not be  sejDarated  from  the  rest,  the  w^hole  laying  out  is  in- 
valid."(/)  And  thus  the  extraordinary  spirit  of  enterprise  in 
that  board  was  unceremoniously  squelched  forever. 

§  411.  Yet  the  distinction  of  void  and  voidable  must  always 
be  borne  in  mind,  and  is  strictly  applicable  herein  to  commis- 
sioners, as  well  as  to  the  ordinary  courts.  Thus  declared  the 
the  New  Hampshire  court :  "We  find  it  difficult  to  conceive 
that  the  character  of  proceedings,  as  judicial  or  otherwise, 
can  depend  upon  the  office  or  station  of  those  who  take  part 
in  them.  If  a  power  is  judicial,  when  it  is  exercised  by  one 
set  of  men,  it  can  hardly  have  a  different  character  when 
similarly  exerted  by  others.  Wherever  one  or  more  persons 
are  authorized,  or  required,  to  call  parties  before  them,  to 
hear  allegations,  and  their  proofs,  and  pronounce  a  determi- 
nation between  them — to  make  a  decision  by  which  the  rights 
of  parties  are  to  be  bound — that  power  seems  to  us  to  be  judi- 
cial, and  their  i^roceedings  are  judicial.  Such  seems  to  us  to 
be  the  power  exercised  under  our  statutes  by  the  selection  of 
towns  in  laying  out  highways.     *     *     ***** 

"Inferior  courts  of  special  jurisdiction  may  lack  the  power 
to  issue  the  process,  or  to  adopt  the  course  of  proceedings  to 
which  they  have  resorted.  Their  modes  of  proceeding  may 
be  precisely  prescribed,  and  if  they  deviate  from  those  modes 
their  proceedings  may  be  invalid,  void  or  voidable  on  this 
account.  But  they  are  void,  if  so,  only  to  those  who  have 
cause  to  complain  on  account  of  them.  They  are  voidable 
only  by  those  who  are  injured,  and  the  exceptions  may  be 
waived  and  the  proceedings  confirmed  by  those  who  alone 
have  cause  of  complaint.  Those  persons  as  to  whom  the 
process  and  proceedings  have  been  regular  can  take  no  excep- 
tion because  others  have  not  been  notified,  or  that  they  have 
not  been  notified  in  a  legal  and  proper  manner.  Irregulari- 
ties, which  is  but  another  word  for  illegalities,  in  the  pro(;eed- 
ings  in  an  action,  furnisii,  everywhere,  ground  of  exception  to 
the  party  whose  rights  are  affected  by  them;  and  the  irreg- 
nlar  proceedings  are  at  once  set  aside  on  motion  of  the  proper 

(f)lnluil)itaiits,  etc.,  v.  County  Com'rs  of  Norfolk,  8  Ciisli.  540. 


406  COMMISSIONERS    OF    HIGHWAYS EMINENT    DOMAIN. 

parties.  But  it  is  a  general  rule  that  if  a  party  who  has 
ground  to  move  the  court  to  set  aside  any  process  or  proceed- 
ing of  any  kind,  neglects  to  make  his  ajiplication  in  a  rea- 
sonable time  after  the  facts  have  come  to  his  knowledge,  he 
is  deemed  to  waive  the  exceptions  by  the  delay,  and  will  be 
forever  precluded  to  make  the  objection  afterwards.  There 
are  exceptions  to  thio  rale,  as  where  a  statute  declares  a 
proceeding  void,  or  authorizes  particular  process  on  certain 
conditions,  which  are  not  complied  with,  in  which  cases  there 
is  no  waiver  by  delay.  *  *  *  *  *  *  No  objection 
being  suggested  to  the  general  jurisdiction  of  the  selectmen 
to  lay  out  highways  within  their  town,  the  illegalities  charged 
in  this  case  all  fall  within  the  last  two  classes  of  exceptions — 
one  of  jurisdiction  over  the  parties  from  neglect  to  give  them 
notice,  and  defects  in  the  course  of  proceedings  afterwards,  in 
the  improper  assessment  of  damages  as  to  some  parties,  and 
neglect  to  assess  any  damages  in  the  case  of  others.  These 
exceptions,  we  think,  do  not  render  the  laying  out  absolutely 
void,  though  they  render  them  liable  to  be  avoided.  Until 
they  are  so  avoided  they  remain  valid  as  to  some  persons, 
and  for  some  purposes,  and  are  capable  of  confirmation. 
They  are  not  impeachable  by  everybody,  nor  open  to  be 
assailed  by  those  wdio  have  no  interest  in  the  matter,  nor  by 
those  as  to  whom  the  proceedings  have  been  regular;  nor  by 
those  who  have  waived  their  exceptions,  and  thus  confirmed 
the  laying  out,  either  directly  or  incidentally.  In  such  cases 
we  have,  therefore,  to  inquire  whether  the  party  who  raises 
the  question  is  one  who  has  a  right  to  complain — whether  the 
cause  of  objection  which  he  assigns  affects  him  or  bis  inter- 
ests ;  and,  if  it  did  once  affect  him,  whether  he  has  waived 
the  exception  by  the  jiart  he  took  in  the  proceedings,  or  has 
since  otherwise  waived  or  released  it,  and  has  thus  disabled 
himself  to  raise  the  objection.  *****  \Ye  ^q  j^q^ 
understand  that  any  writing  is  ever  necessary  to  constitute  or 
prove  a  waiver  of  exceptions  of  this  kind."(g) 

§  412.  In  Maine  it  is  held,  and  no  doubt  this  is  the  general 
rule,  that  without  a  special  statute  commissioners  have  no 
(j')State  V.  Richmond,  6  Foster,  235-2i7,  paxsim,  and  cases  cited. 


COMMISSIONERS    OF    HIGHWAYS EMINENT    DOMAIN.  407 

jurisdistion  to  locate  highways  over  navigable  streams,  or 
arms  of  the  sea,  and  construct  bridges  over  them,  so  as  to 
obstruct  na^•igation  ;  and  that,  if  they  do  so,  any  person  im- 
peded thereby  may  remove  the  bridges. (/<)  And  wliere  such 
a  highway  and  bridge  were  located  over  a  creek  navigable  by 
canal  boats  and  gondolas  the  case  was  held  to  come  within 
this  principle,  and  the  person  removing  the  bridge,  being 
indicted,  was  discharged  by  the  supreme  court.  And,  in  a 
similar  case,  in  Massachusetts,  the  court,  deciding  the  same 
way,  remarked:  "There  can  be  no  doubt,  therefore,  that, 
by  the  principles  of  the  common  law,  as  well  as  by  the  imme- 
morial usage  of  this  government,  all  navigable  waters  are 
public  property,  for  the  use  of  all  the  citizens,  and  that  there 
must  be  some  act  of  the  sovereign  power,  direct  or  derivative, 
to  authorize  any  interruption  of  them.  The  legislature  may, 
without  doubt,  by  a  general  law,  delegate  to  the  magistrates 
of  a  county,  or  to  any  other  body,  the  power  of  determining 
when  public  convenience  requires  that  a  bridge  shall  be  thrown 
over  a  creek  or  a  cove ;  but,  until  they  have  made  such  dele- 
gation, in  express  terms,  it  is  a  branch  of  sovereign  power  to 
be  exercised  by  the  legislature  alone.  Upon  this  ground  it 
was  determined,  in  the  case  of  Commonwealth  v.  Coombs,  that 
the  court  of  sessions,  to  which  body  was  given,  by  a  general 
law,  the  power  of  laying  out  public  ways,  had  not  power  to 
lay  out  such  a  way  over  a  navigable  river  so  that  the  river 
might  be  obstructed  by  a  bridge.  The  statute  giving  power 
to  the  court  of  sessions,  it  is  there  said,  must  have  a  reason- 
able construction.  'A  navigable  river  is,  of  common  right,  a 
public  highway,  and  a  general  authority  to  lay  out  a  new 
liighway  must  not  be  so  extended  as  to  give  a  power  to  ob- 
stmct  an  open  highway  already  in  the  use  of  the  public' 
And  in  the  case  of  the  Inhabitants  of  Arundell  v.  McCulloch 
the  same  principle  is  recognized.  The  court  say:  'It  is  an 
unquestionable  principle  of  the  common  law  that  all  naviga- 
l)le  waters  belong  to  the  sovereign,  or,  in  other  words,  the 
public;  and  that  no  individual  or  corporation  can  appropriate 
them  to  their  own  use,  or  confine  or  obstruct  them  so  as  to 

(/;)Statc  f).  Antlioine,  40  3le.  435. 


4-08  COMMISSIONERS    OF    HIGHWAYS EMINENT    DOMAIN. 

impair  the  passage  over  them,  without  authority  from  the 
legislative  power.  It  is  upon  this  principle  that  so  many  acts 
of  our  legislature  have  been  passed,  authorizing  the  building 
iK  bridges  over  various  streams  and  rivers  within  the  common- 
wealth.' ''{() 

And  the  special  act  must  not  only  confer  authority  to  build 
a  bridge,  but  it  must  confer  that  authority  directly  on  the 
commissioners,  since  the  statute  must  be  strictly  pursued. 
80,  where,  by  a  special  act,  the  city  of  Belfast  was  authorized 
to  erect  and  maintain  a  free  bridge  across  the  Passaggassaw- 
akeag  river — the  bridge  to  be  built  of  suitable  materials,  and 
to  be  so  constructed  as  to  be  safe  and  convenient  for  public 
travel,  and  to  be  provided  with  a  draw  of  sufficient  w'idth  for 
vessels  to  pass  and  repass — and  where  the  municipal  officers 
of  the  city  refused  to  act  therein,  a  petition  was  presented  to 
the  county  commissioners  to  la}'  out  the  way  and  bridge,  which 
they  did.  It  was  held  that  the  act,  neither  in  terms  nor  hy 
implication,  gave  them  any  authority  to  act  in  the  matter,  and 
they  had  no  jurisdiction. (j) 

The  same  principle  is  also  extended  to  the  location  of  a 
highway  upon  a  beach  forming  one  side  of  a  harbor,  and 
which,  though  not  within  the  ebb  and  flow  of  ordinary  tides, 
iniaiJed  b}^  storm  or  wind,  is  yet  almost  always  covered  by 
spring-tides,  and  jjart  of  whicii  is  often  useful  to  vessels  drift- 
ing from  anchorage  in  the  harbor.  Commissioners  cannot 
make  the  location,  if  it  probably,  though  not  necessarily,  would 
injure  the  harbor  for  the  purpose  of  navigation,  or  interfere 
with  public  measures  for  its  protection  and  improvement.  (A;) 

i^  413.  Where,  under  statute,  in  Massachusetts,  an  adjudi- 
cation of  commissioners  la.ying  out  a  highway  across  a  rail- 
road fails  to  state  whether  it  is  to  be  carried  over  or  under, 
or  on  a  line  with,  the  railroad,  or  to  show  that  special  notice 
was  given  to  the  railroad  company,  it  is  erroneous,  and  will  be 
quashed  on  certiorari,  and  that,  too,  even  if  the  railroad  cor- 
poration actually  appeared  and  was  heard  before  the  commis- 

(/)Ci>iuni()invfaltlu'.  Charlestown,  (/llnhabitants,    etc.,    «.    County 

1  Pick.  1..-,  Coin'rs  of  Waldo  Co.  52  Me.  529. 

(/i)lnlialHtants,  etc.,  v.  Com'rs  of  f]ssex,  5  Gray,  451. 


COMMISSIONERS    OF    HIGHWAYS — EMINENT   DOMAIN.  409 

«ioners.(Z)  The  commissioners  have  final  jurisdiction  of  the 
question,  whether  the  highway  shall  be  over,  under,  or  on  a 
level  with  the  railroad. (mj 

§  414.  In  Wisconsin  it  is  held  that  supervisors,  in  altering 
a  highway,  on  proper  application,  have  a  discretion  to  change 
the  route  from  the  proposed  line,  if  satisfied  that  the  pubHc 
interests  would  be  subserved  thereby.  (?ij  And  they  may  re- 
voke an  order  for  a  highway  if  they  find,  on  reconsideration, 
that  the  public  interests  would  be  thus  better  subserved, 
(Nelson  v.  Goodi/koontz,  47  la.  32;)  as,  for  instance,  if  the 
construction  will  be  too  costl}'  from  payment  of  damages  or 
otherwise.  Peojilc  v.  Foos,  88  111.  141.  And  so  they  may 
discontinue  a  road,  [Hatch  v.  Superv.  56  Miss.  26 ;)  or  with- 
draw a  special  privilege  granted  by  them  to  an  individual. 
Teague  v.  Same,  Id.  29. 

§  415.  It  is  held  in  New  York  that,  unless  a  highway  has 
been  laid  out  according  to  the  statute,  commissioners  are  not 
even  authorized  to  make  an  order  for  the  removal  of  encroach- 
ments therein,  (o) 

§  416.  A  town  may  be  estopped  from  disputing  the  juris- 
diction, where,  by  default,  it  virtually  confesses  the  jurisdic- 
tional allegations  of  a  petition.  On  this  the  New  Hampshire 
court  say:  "The  jurisdiction  of  the  court  of  common  pleas 
over  petitions  for  the  laying  out  of  highways  is  limited  and 
special,  depending  upon  particular  exigencies  described  in  the 
statute.  In  such  cases  a  well-founded  and  established  rule 
of  pleading  requires  that  the  petition  to  the  court  should  con- 
tain a  statement  of  all  the  facts  necessary  to  give  jurisdiction 
to  the  court,  and  if  it  fail  to  do  so  the  proceedings  may  be 
suppressed  at  any  stage.  These  allegations,  being  material, 
must  not  only  be  stated,  but,  if  not  admitted,  proved.  Now, 
it  is  perfectly  settled,  by  numerous  autliorities,  that  a  default 
is,  in  eft'ect,  a  confession,  by  the  party  suifering  it,  of  all  the 

{l)R.  11.  V.  Com'rs  of  Plymouth,  (n)Neis  v.  Frawzen,  18  Wis.  537. 

11  Gray,  512.  (o)Chusty   V.   Newton,   60  Barb. 

{in)\i.  K.  V.  Middlese.\  Co.  1  Allen,  332. 
o24. 


410        COJniISSIONERS    OF   HIGHWAYS EMINENT    DOMAIN. 

matericil  allegations  in  the  l)ill,  declaration,  or  petition  by 
which  the  cause  of  action,  or  the  plaintiflf's  case,  is  exposed 
upon  the  record,  the  denial  of  any  one  of  which  would  render 
V.ie  proof  of  it  necessary  on  the  part  of  the  phaintiff,  or  actor, 
to  establish  his  claim  to  the  interposition  of  the  court,  which 
he  has  invoked.  In  this  case  it  is  not  disputed  that  enough 
was  stated  in  the  petition  to  show  that  the  court  of  common 
pleas  had  jurisdiction.  What  was  stated  was  admitted  by  the 
default.  It  would  not  be  reasonable,  nor  would  it  be  con- 
formable to  the  well-established  technicalities  of  the  law,  to 
suffer  a  cause  which  has  proceeded  regularly  to  the  point  of 
deciding  the  merits  of  the  controversy,  to  be  embarrassed  or 
retarded  by  permitting  allegations  to  be  made  inconsistent 
with  what  has  been  admitted,  and  which  the  defendants 
might  have  made  at  a  stage  of  the  proceedings  when  their 
proof  might  have  prevented  a  great  amount  of  trouble  and 
expense  which  the  parties  have  since  incurred,  "(jj) 

§  417.  The  omission  to  hold  a  regular  term, — when  the 
commissioners  do  business  at  terms, — and  thereby  passing 
over  a  petition  until  a  second  term,  works  a  discontinuance 
of  the  proceedings  pending  thereon,  and  wholly  dej^rives  the- 
board  of  jurisdiction. (^)  And  commissioners  may  lose  juris- 
diction by  adjourning  beyond  the  time  limited  by  statute 
for  acting  on  an  application.  State  v.  Castle,  44  Wis.  OTl. 
The  court  of  Maine  said,  in  such  a  case :  "Nor  is  it  any 
sufficient  answer  that  the  county  commissioners  neglected  to 
hold  the  next  regular  term,  as  established  by  statute.  No 
reason  is  assigned  for  not  doing  it.  Their  neglect  of  duty  in 
this  respect  cannot  render  valid  their  violation  of  law  in 
making  their  return  at  the  w^rong  time.  If  they  could,  with- 
out reason,  omit  to  hold  one  term,  they  might  any  number.. 
This  would  leave  it  to  their  discretion  to  hold  a  term  or 
not."(r)  But,  in  Illinois,  it  is  held  that  a  failure  to  adjourn 
from  day  to  day,  during  a  session,  as  required,  is  not  juris- 

(;.) Huntress  v.  Efflnghani,  17  X.  ((/jinhahitants,    etc.,   v.    Com.    of 

II.  '),-;').  Aroostook  Co.  59  31e.  392. 

'/) Allison  V.  Com.  54  Dl.  172. 


COMMISSIONERS    OF    HIGHWAYS EMINENT    DOMAIN.  411 

dictional,  but  only  an  irregularity,  which  is  waived  by  an 
appeal  to  supervisors  from  the  judgment  rendered. (s) 

§  418.  A  notice  to  interested  parties  is  jurisdictional, — in 
the  same  manner  as  process  in  ordinary  actions, — and  the 
notice  is  strictly  construed,  so  that  if  it  be  given  only  to  own- 
ers of  lots  and  lands,  over  and  through  which  a  street  will 
run,  when  opened,  it  will  not  bind  a  person  off  the  line  of  the 
street.  (?) 

§  419.  Like  any  other  judges,  commissioners  may  be  dis- 
qualified from  acting  by  interest,  and  the  principle  here  is 
more  rigidly  applied  than  usually  with  judges  in  the  ordinary 
courts.  It  has  been  held  that  where  a  single  commissioner 
of  the  board  was  a  stockholder  in  a  tax-paying  corporation 
in  the  town  he  was  disqualified;  and,  having  acted,  the  re- 
port of  the  commissioners  laying  out  the  highway  was  there- 
fore set  aside. (w)  And,  also,  where  petitioners  furnished 
liquors  to  the  commissioners,  of  which  the  latter  drank  during 
the  sittings,  it  was  declared  to  be  an  abuse  for  which  a  re- 
port would  be  set  aside,  without  inquiry  as  to  hoM'  far  the 
commissioners  were  affected  by  it.(t;) 


§  420.  The  right  of  eminent  domain  being  intimately  con- 
nected with  the  laying  out  of  highways,  as  well  as  other  pub- 
lic improvements,  I  deem  it  not  inappropriate  to  set  out, 
briefly,  the  jurisdictional  principles  therein  involved.  I  think 
the  leading  outlines  of  the  feudal  system  are  very  strongly 
marked  in  it,  although  writers  seem  to  refer  it  generally  to 
"an  authority  existing  in  every  sovereignty. "(?f)     The  feudal 

(.s) Kidder  «.  Peoria,  29  111.  77.  Casllo,  -44  Wis.  071.     The  party  eu- 

(<)Petition  of  New  Boston,  49  N.  titled  to  notice  is  the  legal  owner, 

H.   328;    Frizell  «.   Rogers,  82  111.  and  not  a   mere  equitable  owner. 

109.    Moreover,  if  a  statute  requires  Hidden  v.   Davidson,  .'Jl    Cal.    i;>}?. 

notice  to  be  given  that  commission-  .Vnd  this  is  to  be  determined,  iisu- 

ers  vpill  meet  at  a  certain  time  and  all}-,  bj-  the  record  title.     Wilson  v. 

place,  to  decide  on  an  application,  Hathaway,  42  la.  173. 

it  is  not  a  compliance  with  the  stat-  (/ONcnvport   Highway,  48  N.   II. 

ute  to  give  notice  that   they  will  433. 

meet  at  a  certain  time  and  place  to  {/;)Cooley"s  Const.  Lim.  .')24. 

consider  such  application.     State  v.  (/rjSurocco  v.  Geary,  3  Cal.  (j9. 


412  COMMISSIONERS    OF    HIGHWAYS EMINENT    DOMAIN. 

features,  of  course,  are  modified  and  somewhat  softened,  but 
yet  this  power  includes — (1)  The  original  fee  in  the  sovereign; 
(2)  the  derivative  nature  of  the  subject's  title;  (3)  the  com- 
plete independence  therein  of  the  subject  who  is  sovereign  of 
his  own  domain;  (4  the  condition  of  assistance  on  which  all 
the  subordinate  feudal  tenures  depended.  One  modification 
of  these  is  the  necessity  of  compensation  for  the  property 
taken,  to  be  judged  usually  by  a  jury.  In  Minnesota  a  jury 
is  dispensed  with.      Brugrjerinan  v.  True,  25  Minn.  123. 

§  421,  I  select  two  topics  as  embracing  the  jurisdictional 
basis,  namely :  the  necessity  of  the  taking,  and  the  purpose 
thereof.  Occasionally  a  question  maj'  arise  as  to  what  a 
taking  is.  It  does  not  always  include  an  actual  possession, 
but  may  take  place  merel}"  by  the  vesting  of  a  right  to  take 
immediate  possession;  as,  for  instance,  where  a  municipal 
corporation,  b}'  ratifying  an  assessment  of  damages,  has 
acquired  a  vested  right,  at  will,  to  enter  on  land  and  use  it 
as  a  street,  it  is  regarded  as  a  taking  in  the  sense  of  the  con- 
stitution. Fink  V.  Xeivarh\  40  N.  J.  11.  As  to  compensation, 
and  jury  investigations  tbereon,  1  regard  these  as  executory 
rather  than  jurisdictional,  and  therefore  as  outside  the  limits 
of  this  work. 

First,  as  to  the  necessity  of  taking.  Not  all  necessary 
taking  or  destruction  of  property  falls  within  the  range  of  this 
power,  however.  For  example,  that  which  is  made  necessary 
by  public  perils  does  not,  as  the  destruction  of  buildings  in 
order  to  arrest  the  progress  of  a  fire.  This  has  been  held  to 
be  for  individual  benefit,  or  for  the  city,  and  not  the  sover- 
eignty, and  the  private  rights  of  the  individual  must  3'ield  to 
the  general  interests  of  safety  to  society,  (a;)  and  that  without 
compensation.  Also,  this  has  been  declared  to  be  merely  a 
regulation  of  the  right,  which  even  individuals  have,  to  de- 
stroy private  propert}'  in  cases  of  inevitable  necessit}'.  In 
New  Jersey,  however,  it  was,  in  1848,  declared  to  be  an  exer- 
cise of  eminent  domain,  to  so  destroj'  property,  and  that, 
therefore,  the  destruction  ought  to  be  compensated. (i/)     But, 

(•OUussell  IK  Mayor,  etc.,  of  New  (,y)Hale  &  Home  v.  Lawrence,  1 

York,  2  Denio,  461.  Zahr.  715. 


COMMISSIONERS    OF    HIGHWAYS EMINENT    DOMAIN.  413 

in  1851,  this  decision  was  virtually  overruled  in  cases  arising 
out  of  the  same  calamity. (^) 

The  true  principle,  undoubtedly,  is  that  the  necessity  in 
eminent  domain  is  not  a  necessity  of  destruction,  but  of  im- 
provement ;  not  of  public  .safety  merely,  but  of  public  use,  for 
the  benefit  of  the  sovereignty  at  large,  directly  or  indirectly. 

"The  right  of  eminent  domain,"  say  the  Indiana  court,  "or 
that  right  by  which  the  sovereign  power,  for  public  uses, 
takes  and  appropriates  the  property  of  the  citizen,  is  one 
which  should  be  watched  with  great  vigilance.  It  should 
never  be  exercised  except  when  the  public  interest  clearly 
demands,  and  then  cautiously  and  in  accordance  with  law. 
The  right  is  one  which  lies  dormant  in  the  state  until  legis- 
lative action  is  had  pointing  out  the  occasion,  mode,  condi- 
tions, and  agencies  for  its  exercise. "(a) 

§  422.  The  legislature  holds  the  primary  right  of  eminent 
domain,  but  can,  and  usually  does,  delegate  its  power;  and 
it  may  do  this  to  municipal  corporations,  or  even  to  private 
corporations,  in  a  measure,  limited  by  the  extent  to  which 
the  use  to  be  made  of  the  improvement  is  a  public  use,  which 
we  will  presently  define  and  explain.  And  the  power  may 
be,  of  course,  given  in  the  charter  of  such  private  corpora- 
tion.    Hand  Gold  Minimi  Co.  v.  Parker,  59  Ga.  419. 

§  423.  But,  in  some  states,  a  jury  is  to  pass  upon  the 
necessity  of  a  tak'tng  before  a  jurisdiction  attaches,  and  where 
such  a  matter  is  referred  to  a  jury  they  must  find  that  the 
taking  is  for  the  public  use  and  benefit ;  that  the  work  itself 
is  one  of  public  importance,  and  that  the  particular  land  is 
needed  for  the  construction  of  the  work. (6)  And  a  finding 
that  "it  was  and  is  necessary  to  take  and  use  said  land  for 

(j)  American  Print  AVorks  v.  Law-  Association  v.  Com'rs,  34  Mich.  .30; 

rence,  3  Zabr.  590.  Wliislcr  v.  Com'rs,  40  Mich.   r)01 ; 

(ajAlIen  «.  .Tones,  47  Intl.  442.  State  ».  Pluinfield,  41  N.  J.  138.    It 

And  accordingly  the  powershould  seems  to  be  an  anomaly,   in   New 

be  .strictly  limited  to  necessity,  and  .Jersey,  that  a  railroatl  company  can 

tlie  proeeedings  should  conform,  in  lend  its  charter-condemning  power 

all  particulars,  with  the  .statutory  to  another  railroad  company.     Coc 

requirements.     Dayton  Mining  Co.  v.  R.  H.  Co.  31  N.  .1.  Eip  147. 
V.  Soawcll,  11  Nev.  .394;  R.  R.  Co.  (ft) Railroad  f).  Clark,  23  Mich.  519. 

«.  -Mender,  .5n  Tex.  77;  l)ctrf)it,  etc, 


-il-l  COMMISSIONERS    OF    HIGHWAYS EMINENT    DOMAIN. 

tlie  purpose  of  operating  and  constructing  said  railway  by 
said  company,"  has  been  held  insufficient. (c)  iind  so,  where 
proceedings  are  instituted  to  obtain  water-power  to  operate 
a  manufactory,  a  finding  that  the  taking  is  to  be  for  the  pub- 
lic use  is  fatally  defective. (d)  And,  where  the  matter  is  to 
be  thus  decided,  I  do  not  know  how  to  justify  the  declaration 
of  the  New  York  court  of  appeals  that  the  "necessity  for 
appropriating  private  property  for  the  use  of  the  public, 
or  of  the  government,  is  not  a  judicial  question,"  notwith- 
standing "the  power  resides  in  the  legislature,  and  may  be 
exercised  by  means  of  a  statute  wliich  shall  at  once  designate 
the  property  to  be  api^ropriated,  and  the  purj)0se  of  the 
appropriation,"  or  delegated  to  public  officers,  or  private  cor- 
porations. (^)  However,  the  court  probably  means  no  more 
than  this :  that  "it  is  not  necessary  for  the  legislature,  in  the 
exercise  of  the  right  of  eminent  domain,  either  directly  or 
indirectly,  through  public  officers  or  agents,  to  invest  the 
proceeding  with  the  forms  or  sul)stance  of  judicial  process,  "(y) 
without  denying  that  this  may,  nevertheless,  be  done  in  the 
exercise  of  legislative  discretion,  so  that  quoad  hue,  to  the  point 
of  the  decision  on  examination,  the  proceedings  are  judicial. 
And  so  notice  to  owners  may  be  requisite  in  the  commence- 
ment of  proceedings,  (^)  so  as  to  allow  them  to  "intervene 
a,nd  participate  in  the  discussion  before  the  officer  or  board." 
In  this  view  of  the  case,  the  New  York  decision  rests  on  the 
ground,  merely,  that  the  legislature,  being  under  no  obliga- 
tion to  make  the  determination  judicial,  had  not  actually 
done  so. 

§  424.  It  is  imperative  that  the  taking  be  for  a  public  and 
not  a  merely  private  use.  Thus  the  limit  to  the  j^ower 
granted  to  railroad  corporations  to  take  lands  for  railroad 
purposes, — tracks,  buildings,  etc., — in  regard  to  present  and 
prospective  need,  is  the  reasonable  necessity  of  the  corpora- 
tion in  discharging  its  duty  to  the  public.     In  re  N.  Y.  C,  etc., 

(r)Kailroadf;.  VanDrelle,24Mich.  (<-)People  v.  iSmith,  21  IN".  Y.  oOS. 

4(t'.i.  (/)Ibid,  599. 

(^(')McClary  «.  Hartwell,  25  Mich.  (£?)Smitli  v.  Railroad,  67  111.  194. 
130. 


COMMISSIONERS    OF    HIGHWAY:^ EMINENT    DOIUAIN.  415 

Pi.  Co.  77  N.  Y.  248.  And  the  determination  of  this  question 
is  expressly  held,  in  Vermont  and  Massachusetts,  not  to  be 
exclusivelj^  legislative,  but  judicial,  as  to  particular  cases. 
In  Vermont  the  court  says:  "The  important  question  in  this 
case  relates  to  the  validity  of  the  several  acts  of  the  legisla- 
ture, upon  which  tliese  proceedings  wholly  rest.  The  legisla- 
ture is  limited  in  its  powers  by  the  constitution  of  the  state, 
and  whatever  it  does  in  excess  of  the  limits  is  nugatory.  The 
first  article  of  the  first  part  of  the  constitution  declares  ac- 
quiring, possessing,  and  protecting  property  to  be  among  the 
natural,  inherent,  and  inalienable  rights  of  persons.  The 
second  article  of  the  same  part  declares  that  private  property 
ought  to  be  subservient  to  public  uses  when  necessity  requires 
it ;  but  that,  whenever  taken  for  the  uses  of  the  public,  the 
owner  ought  to  have  an  equivalent  in  money.  These  decla- 
rations together  are  equivalent  to  a  declaration  that  jarivate 
property  ought,  upon  compensation  made  in  money,  to  be 
subservient  to  public  uses  when  necessity  requires  it,  and  to 
no  other  uses,  even  though  necessity  should  require  it,  and 
compensation  should  be  made.  [Of  course,  it  is  always  re- 
quisite that  compensation  be  made,  or  at  least  secured,  be- 
fore possession  be  taken.  Sanborn  v.  Belden,  51  Cal.  20S; 
Jersey  City  v.  Fitzpatrick,  30  N.  J.  Eq.  99.  In  x\rkansas  the 
existence  of  an  adequate  remedy  to  the  land  owner  will  ])er- 
mit  the  entry  of  a  railroad  company  before  the  assessment 
and  payment  of  compensation.  R.  K.  v.  Turner,  81  Ark. 
495.  A  preliminary  attempt  to  agree  on  the  compensation 
with  the  owner,  and  a  failure  therein,  may  be  required  to  be 
alleged  as  a  jurisdictional  fact  in  proceedings  for  condemna- 
tion. In  re  Lockporf,  etc.,  R.  Co.  77  N.  Y.  557.  If  an  owner 
agrees  to  claim  no  damages,  it  is  binding  on  him.  Coonilis  v. 
C'onirs,  68  Me.  484.  If  an  agreement  provides  for  an  ex- 
orbitant compensation  for  lands  taken  to  build  a  railroad, 
and  the  corporation  takes  possession  before  payment,  and 
the  corporation  becomes  insolvent,  and  its  affairs  pass  into 
the  hands  of  a  receiver,  and  afterwards  the  owner  sues  to 
recover  the  amount  agreed  om,  it  is  held,  in  New  Jersey,  that 
the  court  has  jurisdiction  to  reduce  the  amount  to  a  reason- 


416  COM.MISSIONERS    OF    HIGHWAYS EMINENT    DOMAIN. 

able  and  just   estimate.      Coe  x.  R.  li.  30  N.  .J.  Eq.  21.     In 
condemnation  proceedings,  compensation  is  to  be  estimated 
as  of  the  time  of  taking  possession,  and  cannot,  therefore,  in- 
clude subsequent  improvements  made  by  the  taker  thereon. 
Price  V.  Ferry  Co.  31  N.  J.  Eq.  31.]     Whenever  the  use  is  public 
the  legislature  has  full  power  to  determine  whether  a  necessity 
for  taking  for  such  use,  in  any  classes  of  cases,  exists  or  not^ 
and  the  legislature  has  the  sole  prerogative  of  determining  a& 
to  the  propriety  of  exercising  the  power  it  has  upon  the  neces- 
sity that  does  exist  in  any  class  of  cases.     But  the  legislature 
has  not  power  to  so  detennine  that  a  use  is  a  public  use,, 
as  to  make  the  determination  conclusive.     The  attemj^t  of 
the  legislature  to  exercise  the  right  of  eminent  domain  does 
not,  therefore,  settle  that  it  has  the  right.     But  the  exist- 
ence of  the  right  in  the  legislature,  in  any  class  of  cases,  is 
left  to  be  determined  under  the  constitution  by  the  courts. "(/j) 
And  the  Massachusetts  court  say.  on  the  same  subject:   "We 
are  met  at  the  outset  with  the  suggestion  that  it  is  the  exclu- 
sive province  of  the  legislature  to  determine  whether  the  pur- 
pose or  obiect  for  which  propertj-  is  taken  is  a  public  use,  and 
that  it  is  not  within  the  province  of  the  judicial  department 
of  the  government  to  revise  or  control  the  will  of  the  legisla- 
ture upon  the  subject,  when  expressed  in  the  form  of  a  legal 
enactment.     But  this  position  seems   to  us  to  be  obviously 
untenable.     The  provision  in  the  constitution  that  no  part  of 
the  property  of  an  individual  can  be  taken  from  him  or  ap- 
X^lied  to  public  uses  without  his  consent,  or  that  of  the  legis- 
lature, and  that,  when  it  is  appropriated  to  public  uses,  he 
shall  receive  a  reasonable  compensation  therefor,  necessarily 
implies  that  it  can  be  taken  only  for  such  a  use,  and  is  equiv- 
alent to  a  declaration  that  it  cannot  be  taken  and  appropri- 
ated to  a  purpose  in  its  nature  private,  or  for  the  benefit  of  a 
few  individuals.     In  this  view  it  is  a  direct  and  positive  lim- 
itation upon  the  exercise  of  legislative  power,  and  any  act 
which  goes  beyond  this  limitation  must  be  unconstitutional 
and  void.     No  one  can  doubt  that  if  the  legislature  should, 
by  statute,  take  the  property  of  A.  and  transfer  it  to  B.  it  would 
(A)Tyler  v.  Beecher,  44  Vt.  651. 


COMMISSIONERS    OF    HIGHWAYS EMINENT   DOMAIN.  417 

transcend  its  constitutional  power.  In  all  cases,  therefore, 
where  this  power  is  exercised,  it  necessarily  involves  an 
inquiry  into  the  rightful  authority  of  the  legislature  under 
the  organic  law. 

"But  the  legislature  has  no  power  to  determine  finally  upon 
the  extent  of  their  authority  over  private  rights.  That  is  a 
power,  in  its  nature,  essentially  judicial,  which  they  are,  by 
article  thirtieth  of  the  declaration  of  rights,  expressly  for- 
bidden to  exercise.  The  question  whether  a  statute,  in  a  par- 
ticular instance,  exceeds  the  just  limits  prescribed  by  the 
constitution,  must  be  determined  by  the  judiciary.  In  no 
other  way  can  the  rights  of  the  citizen  be  protected,  when 
they  are  invaded  by  legislative  acts  which  go  beyond  the  lim- 
itations imposed  by  the  constitution.  But  it  is  to  be  borne 
in  mind  that,  in  determining  the  question  whether  a  statute 
is  within  the  legitimate  sphere  of  legislative  action,  it  is  the 
duty  of  courts  to  make  all  reasonable  presumptions  in  favor 
of  its  validity.  It  is  not  to  be  supposed  that  the  law-making 
power  has  transcended  its  authority,  or  committed,  under 
the  form  of  law,  a  violation  of  individual  rights.  When  an 
act  has  been  passed,  with  all  the  requisites  necessary  to  give 
it  the  force  of  a  binding  statute,  it  must  be  regarded  as  valid, 
unless  it  can  be  clearly  shown  to  be  in  conflict  with  the  con- 
stitution. *  *  *  Besides,  it  is  a  well-settled  rule  of  expo- 
sition that,  in  considering  whether  a  statute  is  within  the 
limits  of  legislative  authority,  if  it  may,  or  may  not,  be 
valid,  according  to  circumstances,  courts  are  bound  to  pre- 
sume the  existence  of  those  circumstances  which  will  give  it 
validity,  "(i) 

From  these  decisions,  these  deductions  are  to  be  drawn, 
namely:  (1)  From  the  Massachusetts  case,  that  the  courts 
are  to  decide  whether  a  particular  statute  provides  for  a  pub- 
lic use,  in  accordance  with  the  constitution,  or  not;  (2)  from 
the  Vermont  case,  that  the  legislature  may  define  public  uses 
in  a  general  way,  and  in  regard  to  classified  cases,  l)ut  it 
belongs  to  the  courts  to  apply  it,  in  any  particular  case,  in 
the  same  manner  that  other  judicial  statutes  are  carried  into 
(t)T;ilbot  V.  Hudson,  IG  Gniv,  422 

V.  1—27 


4:18  COMMISSIONERS    OF    HIGHWAYS EMINENT    DOMAIN. 

pratitical  effect;  so  that  hereby  it  is  declared  that  the  legis- 
lative discretion  passes  under  judicial  supervision  and  action. 

For  a  discussion  of  the  relative  position  of  the  legislature 
and  courts  herein,  see  Broicn  \.  Keener,  T-i  X.  C.  718;  R.  R. 
V.  Town  of  Lake,  71  111.  333. 

§  425.  As  to  what  is  a  j)uhlic  use,  there  is  room  for  a  con- 
trariety of  opinions,  because,  although,  "in  many  cases,  there 
can  be  no  difficulty  in  determining  whether  an  apj)ropriation 
of  property  is  for  a  public  or  a  private  use — as,  if  land  is 
taken  for  a  fort,  a  canal,  or  a  highway — it  would  clearly  fall 
within  the  first  class;  if  it  is  transferred  from  one  person  to 
another,  or  to  several  persons,  solely  for  their  peculiar  benefit 
and  advantage,  it  would  as  clearly  come  within  the  second 
class;  yet  there  are  intermediate  cases,  where  public  and 
private  interests  are  blended  together,  in  which  it  becomes 
more  difficult  to  decide  within  which  of  the  two  cases  they 
may  be  properly  said  to  fall.  There  is  no  fixed  rule,  or 
standard,  by  which  such  cases  can  be  tried  and  determined. 
Each  must  necessarily  depend  upon  its  own  peculiar  circum- 
stances. *  *  *  *  "^y^  And  there  can  be  iiu  difficulty 
in  deciding  that  land  taken  for  a  public  school-house  is  taken 
for  a  public  use.     Smit]i  v.  School  District,  40  Mich.  143. 

"It  has  never  been  deemed  essential  that  the  entire  com- 
munitj',  or  any  considerable  portion  of  it,  should  directly  en- 
joy or  participate  in  an  improvement  or  enterprise,  in  order  to 
constitute  a  public  use  within  the  true  meaning  of  these  words 
as  used  in  the  constitution.  Such  an  interpretation  would 
greatly  narrow  and  cripple  the  authority  of  the  legislature,  so 
as  to  deprive  it  of  the  power  of  exerting  a  material  and  bene- 
ficial influence  on  the  prosperity  and  welfare  of  the  state. 
In  a  broad  and  comprehensive  view,  such  as  has  been  hereto- 
fore taken  of  the  construction  of  this  clause  of  the  declaration 
of  rights,  everything  which  tends  to  enlarge  the  resources, 
increase  the  industrial  energies,  and  promote  the  productive 
power  of  an}'  considerable  number  of  the  inhabitants  of  a  sec- 
tion of  the  state,  or  which  leads  to  the  growth  of  towns,  or 
the  creation  of  new  sources  for  the  emiiloyment  of  private  cap- 

(j)Talbot  V.  lludsou,  lU  Gray,  423. 


COMMISSIONERS    OF    HIGH\VA\\->— EMINENT    DOMAIN.  411) 

ital  and  labor,  indirectly  contributes  to  the  general  welfare  and 
to  the  ijrosperity  of  the  whole  community.  It  is  on  this  prin- 
ciple that  many  of  the  statutes  of  this  commonwealth,  by 
which  private  property  has  been  heretofore  taken  and  appro- 
priated to  a  supposed  public  use,  are  founded.  Such  legisla- 
tion has  the  sanction  of  precedents  coeval  with  the  origin  and 
adoption  pf  the  constitution,  and  the  principle  has  been  so 
often  recognized  and  approved,  as  legitimate  and  constitutional, 
that  it  has  become  incorporated  into  our  jurisprudence.  One 
of  the  earliest  and  most  familiar  instances  of  the  exercise  of 
such  power  under  the  constitution  is  to  be  fcmnd  in  Stat.  i7l>5, 
for  the  support  and  regulation  of  mills.  By  this  statute,  the 
owner  of  a  mill  had  j^ower,  for  the  purpose  of  raising  a  head 
of  water  to  operate  bis  mill,  to  overflow  the  land  of  proprie- 
tors above,  and  thereby  to  take  a  permanent  easement  in  the 
soil  of  another,  to  the  entire  destruction  of  its  beneficial  use  by 
him,  on  paying  a  suitable  compensation  therefor.  Under  the 
right  thus  conferred,  the  mere  direct  benefit  was  to  the  owner 
of  the  mill  only.  Private  property  was,  in  effect,  taken  from 
one  individual  and  transferred  for  the  benelit  of  another,  and 
the  only  public  use  which  was  thereby-  subserved  was  the  indi- 
rect benefit  received  by  the  community  by  the  erection  of  mills 
for  the  convenience  of  the  neighborhood,  and  the  general  ad- 
vantage which  accrued  to  trade  and  agriculture  by  increasing 
the  facilities  for  traffic  and  the  consumption  of  the  products 
of  the  soil.  Such  was  the  purpose  of  this  statute,  as  appears 
from  the  preambles  to  the  provincial  acts  of  8  and  13  Anne, 
from  which  the  statute  of  1795  was  substantially  copied. 
It  is  thereby  declared  that  the  building  of  mills  has  been 
'  serviceable  for  the  public  good  and  benefit  of  the  town,  or 
considerable  neighborhood.'*  In  like  manner,  and  for  similar 
purposes,  acts  of  incorporation  have  been  granted  to  individ- 
uals, with  authority  to  create  large  mill  powers  for  manufac- 
turing establishments  by  taking  private  property,  even  to  the 

*It  is  certain  tliat,  in  the  present  mills  is  not  a  pulilie  use,  an.l  enn- 
advanced  condition  of  facilities  for  deninatioii  cannot  take  place  there- 
conveying  and  manufactnring  grain  for. 
into    breadstufEs,    the    erection    of 


420  COMMISSIONEKS    OF    HIGHWAYS KMINENT    DOMAIN. 

extent  of  destroying  other  mills  and  water  privileges  on  the 
same  stream.  Boston  <£  Rochurij  Mill-dam  v.  Xeionan,  12 
Pick.  467;  Hazen  v.  Essex  Co.  12  Cash.  478;  Commonw.  v. 
Essex  Co.  13  Gray,  249. 

"The  main  and  direct  object  of  these  acts  is  to  confer  a 
benefit  on  private  stockholders  who  are  willing  to  embark 
their  skill  and  capital  in  the  outlay  necessary  to  carry  for- 
ward enterprises  which  indirectly  tend  to  the  prosperity  and 
welfare  of  the  community.  And  it  is  because  they  thus  lead, 
incidentally,  to  the  promotion  of  'one  of  the  great  industrial 
pursuits  of  the  ooinmo  .wealth,'  that  they  have  been  hereto- 
fore sanctioned  by  this  court,  as  well  as  the  legislature,  as 
being  a  legitimate  exercise  of  the  right  of  eminent  domain, 
justifying  the  taking  and  appropriation  of  private  property. 
Hazen  v.  Essex  Co.  12  Cush.  475.  It  is  certainly  difficult  to 
see  any  good  reason  for  making  a  disi  rimination  in  this  re- 
spect between  different  branches  of  industry.  If  it  is  lawful 
and  constitutional  to  advance  the  manufacturing  or  mechan- 
ical interest  of  a  section  of  the  state,  by  allowing  individuals 
acting  primarily,  for  their  own  profit,  to  take  private  propert}', 
there  would  seem  to  be  little,  if  any,  room  for  doubt  as  to  the 
authority  of  the  legislature,  acting  as  the  representatives  of 
the  whole  people,  to  make  a  similar  appropriation  by  their  own 
immediate  agents  in  order  to  promote  the  agricultural  inter- 
ests of  a  large  territory.  Indeed,  it  would  seem  to  be  most 
reasonable  and  consistent  with  the  principle  upon  which  leg- 
islation of  this  character  has  been  exercised  and  judicially 
sanctioned  in  this  commonwealth,  to  hold  that  the  legislature 
might  provide  that  land  which  has  been  taken  for  a  public 
use,  and  subjected  to  a  servitude,  or  easement,  b}'  which  its 
value  has  been  imijaired,  and  it  has  been  rendered  less  pro- 
ductive, should  be  relieved  from  the  burden,  if  the  purpose 
for  which  it  was  so  appropriated  has  ceased  to  be  of  public 
utility,  and  its  restoration  to  its  original  condition,  discharged 
of  the  incumbrance,  will  tend  to  promote  the  interests  of  the 
community  by  contributing  to  the  means  of  increasing  the 
general  wealth  and  prosperity.  If  the  right  of  a  mill  owner 
to  raise  a  dam,  and  flow  the  land  of  adjacent  proprietors, 


COMMISSIONERS    OF    HIGHWAYS EMINENT    DOMAIN.  4:21 

has  ceased  to  be  of  auy  public  advantage,  and  tends  to  retard 
prosperity  and  to  impoverish  the  neiglihorhood,  and  the  with- 
drawal of  the  water  from  the  land,  by  taking  down  the  dam 
and  rendering  the  land  available  for  agricultural  purposes, 
would  be  so  conducive  to  the  interests  of  the  community  as 
to  render  it  a  work  of  public  utility,  there  is  no  good  reason 
why  the  legislature  maj*  not  constitutionally  exercise  the 
power  to  take  down  the  dam,  on  making  suitable  compensa- 
tion to  the  owner.  It  would  only  be  to  apply  to  the  mill- 
owner,  for  the  benefit  of  agriculture,  the  same  rule  which  had 
been  previously  applied  to  the  land-owner  for  the  promotion 
i)i  manufacturing  and  mechanical  pursuits. "(/i) 

In  New  York  it  is  held  the  legislature  is  the  sole  judge  of 
what  constitutes  a  public  use,  except  that,  to  a  limited  extent, 
the  constitutionality  of  a  statute  on  the  subject  is  a  judicial 
question.  And  it  is  held  that  the  supply  of  gas  from  a  nat- 
ural gas  well  is  a  public  use,  because  the  lighting  of  streets 
mid  public  places  is  a  public  benefit,  and  the  court  insinuates 
that  the  supply  of  manufactured  gas  may  come  under  the 
same  principle  ;(^)  as,  also,  does  the  construction  of  railroads 
everywhere,  (/u) 

§  42(5.  The  delegation  of  power,  under  the  eminent  domain 
law,  is  strictly  construed;  and  so,  where  a  contractor,  under  a 
-contract  with  the  state  to  construct  a  canal  duly  laid  out, 
finds  it  necessary  to  blast  rocks  in  the  bed  of  the  canal,  he  is 
liable  if  any  of  the  fragments  lodge  upon  adjacent  premises, 
not  taken  for  the  purposes  of  the  improvement  by  the  compe- 
tent authorities,  (/<)  and  the  plea  of  necessity  will  not  avail  liim. 

§  42T.  The  delegation  of  power  does  not  take  away  the 
discretion  of  officers,  so  as  to  prevent  a  discontinuance  of 
proceedings — as  in  laying  out  a  park — wherei)i  no  actual 
injury  has  been  done  to  land,  when  it  is  discovered  that  the 
expense  will  be  too  great. (o) 

(A;)Talbot'«.  Hudson,  16  Gray,  42:J-  Cal.  148.     And  of  telci,n-aph  lines. 

428,  passim.                               '  K-  H.  Co.  ■«.  Tel.  Co.  rr.i  Ala.  211. 

(/')  Bloomfield,  etc.,  Gas-li.iiht  Co.  (n)St.  Peter  v.  Denison,  r,H  N.  V. 

r.  Itic-liardison,  6.3  Harb.  437.  421. 

(//-)!{.   R   V.  Chv  of  Stockton,  41  («) Washington  Park,. Oe  N.Y.  149. 


422  COMMISSIONERS    OF   HIGHWAYS EMINENT    DOMAIN. 

§  42S.  It  is  held  that  the  usual  presumptions  prevail  in 
regard  to  the  rightfal  exercise  of  jurisdiction  herein,  so  that, 
when  land  has  been  condemned  for  a  railway,  the  determina- 
tion can  no  more  be  impeached,  collaterally,  "than  the  judg- 
ment of  any  other  court  of  exclusive  jurisdiction,  and  all  the 
elements  legally  entering  into  the  adjudication  will  be  pre- 
sumed to  have  been  assigned  due  consideration. "(pj 

§  429.  As  to  the  kinds  of  property  subject  to  the  exercise 
of  the  right,  "every  species  of  property  which  may  become 
necessary  for  the  public  use,  and  which  the  government  can- 
not appropriate,  under  any  other  recognized  right,  is  subject 
to  be  seized  and  appropriated  under  the  r'ght  of  eminent 
domain.  Lands  for  the  public  wa3'&;  a  building  that  stands 
in  the  way  of  a  contemplated  improvement,  or  which,  for  any 
other  reason,  it  is  necessary  to  take,  remove,  or  destroy,  for 
the  public  good;  streams  of  water,  corporate  franchises,  and, 
generally,  it  may  be  said,  legal  and  equitable  rights  of  every 
description,  save  money,  which  it  cannot  be  needful  to  take 
under  this  power,  and  rights  of  action,  which  can  only  be 
available  when  made  to  produce  money,  are  liable  to  be 
appropriated. "(r/)  Land  occupied  by  one  railroad  may  be 
thus  taken  for  a  passenger  station  by  another  railroad  com- 
pany, even  if  the  company  whose  land  is  taken  is  thereby 
deprived  of  a  part  of  its  business, (/•)  and  particularly  land 
which  is  not  in  actual  use  an  1  indispensable  for  the  use  of 
the  franchise  previously  conferred  is  liable;  for  these  must 
stand  on  the  same  footing  as  the  property  of  individuals  ;(.<?) 
and  even  if  the  property  of  an  insolvent  railroad  company  is 
in  the  hands  of  a  receiver,  this  fact  constitutes  no  exemption. 
Central  R.  li.  v.  Pcnn.  R.  R,  31  N.  J.  Eg.  475.     And  so  with 

{p)R.  R.  V.  H.  K.  67  111.  J47-148.  the  lien.     Tlatt  v.  Bright,  :51  X.  .J. 

(7)Co()lev'.s  Const.  Lira.  r)26.  Eq.  81. 

Even  the  risj;hts  of  a  raortj^agee  (r)ii.  R.  v.  R.  R.  Ill  ila,-;.-;    12."). 

aie  in  a  measure  subordinate,  and  a  (■'^)-J-  R-  »•  R-  R-  C(J  111.  17(i.    And 

laker  will  be   protected   against  a  a   right    of    way   may   be    granted 

lien  holder  who  is  not  made  a  party  through  public  lands  on  which  there 

to  the  condemnation    proceedings.  is  an  inchoate  homestead  claim.    R. 

But  the  money  paid  in  cumpensa-  R.  v.  Gordon,  41  Mich.  -^SJ. 
tion  is  subject  to  the  payment  of 


COMMISSIONERS    OP    HIGHWAYS EMINENT    DOMAIN.  423 

the  lands  of  a  gas  company.  N.  Y.,  etc.,  R.  Co.  v,  Ga^  Co. 
C3  N.  Y.  326.  And  one  water  company  may  appropriate  the 
lands  of  another.  Rochester  Water  Coiinnissioiiei-s'  Cnse,  66 
N.  Y.  413.  A  private  way  can  be  changed  into  a  public 
highway  on  due  compensation  to  the  owner;  altliough  not 
without  such  compensation.  Ayres  v.  Richards,  41  Mich. 
680. 

The  general  rule  in  such  matters  is  that  lands  appropriated  to 
public  use  are  not  thereby  released  from  liability  to  a  subjec- 
tion, by  legislative  authority,  to  another  public  use ;  although 
a  subsequent  grant  must  not  invade  the  former  use,  unless 
authorized  in  express  terms,  or  by  necessary  implication. (f) 

(<)R.    R.   «.    City   of   Dayton,   23  R.   v.    Dayton,   23    Ohio    St.    51S; 

Ohio  St.  518  ;  Evergreen  Cemetery  Water  Co.  v.  K.  R.  Co.  23  Pick.  360  ; 

Association  V.  New  Haven,  43  Conn.  R.  R.  Co.  v.  R.  R.  Co.  87  HI.  317; 

234;    Central,  etc.,  R.  Co.  v.  Fort  /«  re  N.  Y.  C,  etc.,  R.  Co.  77  N.  Y, 

Clark,  etc.,  R.  Co.  81  111.  523;  R.  24S. 


424  AKBITUATION. 


CHAPTEE  XII. 

AEBITRATION. 

H30.  Nature  of  arbitration. 

431.  Tl)e  submissiou — parties. 

432.  Minors. 

433.  Guardian.s. 

434.  Executors  and  administrators. 

435.  Attorne^-.^  at  law. 

436.  Agents. 

437.  Partners. 

438.  Joint  owners. 

439.  Husband  and  wife. 

440.  Corporations. 

441.  United  States  disti'ict  attorneys. 

442.  Etfect  of  submission  made  while  under  arrest. 

443.  What  maj'be  arbitrated — what  an  award  may  emorace — submissions 

— revocation — di.squalilications. 

§  430.  A  submission  to  arl)itration  may  be  regarded  as 
a  contract  constitutins  the  court;  the  judicial  character  of 
the  proceedings  more  properly  attaches  afterwards.  Neverthe- 
less, it  is  a  basis  of  Junsdictlon:  and  -wiien  a  court  is  to  enter 
judgment  on  the  award  of  arbitrators,  under  a  statutory  reg- 
ulation, it  is  indispensable  to  the  jurisdiction  of  the  court 
that  the  submission  contains,  in  substance,  what  the  statute 
requires,  and  be  executed  with  the  prescribed  formalities. (^o) 
Of  course,  a  private  award  does  not  need  to  follow  a  statute, 
(Price  V.  Bi/ne,  57  Ga.  176,)  although  such  award  must  be 
governed  by  the  common  law,  (Bremer  v.  Bai?i,  60  Ala.  153,) 
and  on  such  compliance  -with  the  common  law  is  valid  and 
l)indiiig,  find  that,  too,  even  in  a  bastardy  case.  Smith  v. 
Kirhpairick,  58  Ind.  254.  An  arbitration  under  a  rule  of 
court  may  be  as  conclusive  as  a  judgment,  under  a  regular 
submission,  (Yeatman  v.  Maiiison,  59  x\la.  382;)  and  w^here  it 

{//) Moody  V.  Nelson,  00  111.  229. 


AKBITRATION.  425 

is  final,  and  entirely  conclusive  as  to  the  rights  of  the 
parties.  And  so  a  finding  may  be  res  adjudlcata,  and  not 
subject  to  collateral  objection,  {Beam  v.  Macoiiiher,  35  Mich. 
455;)  as,  for  instance,  in  regard  to  a  disputed  boundary 
line.  Davis  v.  Henry,  121  Mass.  150.  When  jurisdiction 
is  obtained  the  proceedings  are  not  to  be  held  to  critical 
exactness,  or  interfered  with  on  merely  technical  grounds  :([>) 
and,  indeed,  there  is  hardly  any  ground  upon  which  an 
award  within  the  submission  will  be  set  aside,  except  the 
single  one  of  fraud.  And,  herein,  the  rule  is  the  same 
as  to  strictly  private  arbitrations,  to  which  the  parties 
iave,  in  due  form,  submitted  the  determination  of  matters 
in  controversy  ;(c)  unless,  of  course,  the  submission  is  re- 
voked, by  notice,  before  the  award  is  made,  and  not  waived 
by  appearance  and  participation.  ((/)  An  award  will  not 
be  set  aside  merely  because  it  is  erroneous,  or  against  the 
weight  of  evidence,  unless  the  error  is  so  gross  that  it  cannot 
be  accounted  for  except  by  corruption  or  dishonesty  in  the 
arbitrators. (c)  Thus,  it  is  stated  in  Massachusetts  :  "When- 
ever a  case  is  referrexl,  vvith  the  consent  of  the  parties,  to 
arbitration,  whether  by  rule  of  court,  by  mutual  bonds  in  the 
county,  or  by  agreement  before  a  justice  of  the  peace,  under 
the  statute,  the  decision  of  the  arbitrator,  upon  the  question 
submitted  to  him,  is  final  both  upon  tlie  law  and  facts,  unless 
otherwise  provided  by  the  terms  of  the  subuiis^sion.  or  of  his 
award,  and  can  be  set  aside  only  for  exceeding  the  terms  of 
the  submission,  for  fraud,  or  corruption,  or  for  sut-h  uustakc 
as  shows  that  he  did  not  apply  the  rules  \vhi:-h  lie  intended 
to  apply  to  the  decision  of  the  case."(./)  Going  l)eyond  the 
submission  will,  of  course,  vitiate  the  award  by  a  want  of 
jurisdiction,  (Sherfi/  v.  Graham,  72  111.  I'y^j  although,  if 
the  matters  are  severable,  the  award  will  only  be  void  to  the 
extent  of  the  excess,  and  what  is  within  the  submission  will 
still  be  valid.  Bogan  v.  DounhdrUK  :A  Ala.  5i;i.  Hut  that 
which  will  enable  the  court  to  sever  the  good   froui  the  bad 

(h)\i.  H.  »).  Ilno-hcs,  2s  Mid).  1>T.  lO^-    '^  "■  '1'Ik"":'^-  -■'  >«'•  •'•  ''-'I 

(r)Sinitli  v.  K.  It.  IG  (Jniy,  Trj:!.  4:!:!. 

((i)Seeley  «.  Pelton.  K>,  111.  102.  (/)Cartcr  r.  Cail.T,  K'H  .Mas..  :;(•'.). 


4*26  ARBITRATION. 

must  appear  on  the  face  of  the  award.  Bullock  v.  Bergman^ 
46  Md.  270.  Where  there  is  a  reference  made  in  a  case 
pending  in  a  court,  the  consent  of  the  parties  must  be  entered 
of  record,  at  least  on  the  minutes  of  the  court.  Stone  \. 
Morrill,  43  Wis.  72.  And  so  a  party  complaining  must  be 
able  to  show  from  the  award  itself  that  but  for  the  mistake  a 
diiferent  award  would  have  been  rendered ;  and  unless  re- 
stricted by  the  submission,  the  arbitrators  may  disregard 
strict  rules  of  law  and  evidence,  and  make  an  equitable  de- 
cision. Halstead  v.  Leaman,  52  How.  Er.  415.  And,  more- 
over, an  award  cannot  be  set  aside,  on  the  ground  of  mistake, 
unless  it  is  shown  that  the  mistake  was  made  bj'  them  on 
their  own  theory'.  If  a  party  makes  a  mistaken  concession, 
and  on  this  the  award  is  partly  based,  he  is  bound  by  the 
result.  Davis  v.  Henry,  121  Mass.  150.  And  if  an  award 
is  sought  to  be  impeached  on  the  ground  that  only  a  part  of 
the  matters  submitted  were  passed  upon,  it  must  be  shown 
that  the  matters  omitted  were  brought  to  the  notice  of  the 
arbitrators  by  the  party  complaining.  Young  v.  Kinney,  4S 
Vt.  22.  Of  course,  an  award  can  be  impeached  for  fraud  on 
the  same  grounds  on  which  a  judgment  may  be.  Conway  v 
Duncan,  28  0.  St.  105.  But  as  to  mistake,  it  must,  as 
above  stated,  be  shown  that  the  mistake  injuriously  affected 
the  award.  Gorham  v.  Millard,  50  la.  554.  However,  ap- 
parent errors,  either  of  law  or  fact,  may  be  ground  for  setting 
aside  an  award.  State  v.  Ward,  9  Heisk.  100;  King  v. 
Manuf'g  Co.  79  N.  C.  360.  A  mere  clerical  error  may  be 
corrected.  Clement  v.  Foster,  69  Me.  319;  Davis  v.  Cilley, 
44  N.  H.  448.  Every  reasonable  intendment  will  be  made 
in  favor  of  an  award.      Darst  v.  Collier,  ^fo  111.  96. 

§  431.  The  submission,  then,  being  the  source  of  authority 
to  the  arbitrators,  our  inquiries  will  be  mainly  confined  to 
this,  since,  unless  it  is  suliicient  in  itself,  there  is  no  proper 
court  appointed  or  constituted,  and  all  proceedings  must  be 
nugatory,  or,  at  least,  dependent  upon  the  discretion  of  the 
parties,  and  their  satisfaction  with  the  award. 

And  our  first  topic  will  be  the  parties.  These  are,  in  great 
degree,  determined  by  the  rules  which  apply  to  parties  exe- 


AEBITRATION.  427 

cuting  contracts,  since  a  submission  is  a  contract,  notwith- 
standing it  is  a  jurisdictional  authority  to  act. 

It  is  essential  that  the  parties  are  such  as  have  power  to 
obey  any  aw^ard  that  may  be  rendered  within  the  submission. 
For  instance,  where  a  religious  corporation  has  no  power  to 
sell  real  estate,  except  by  authority  of  court,  it  cannot  refer 
the  question  of  selling  it  to  any  other  tribunal;  and  if  an 
arbiter  is  chosen  who  decides  that  the  property  shall  be  sold, 
the  award  is  necessarily  a  nullity,  having,  in  reality,  nothing 
to  stand  upon.(^^)  For  judicial  power  cannot  be  delegated; 
and,  therefore,  as  the  matter  of  sale,  in  such  cases,  rests  in 
the  discretion  of  the  court  itself,  that  discretion  must  be 
invoked  from  the  court,  and  none  can  be  substituted  in  its 
exercise.  x\nd  it  is  a  settled  rule  that  public  policy  forbids 
that  arbitrations  should  ever  be  allowed  in  such  a  manner  as 
to  oust  the  jurisdiction  of  the  courts ;  as,  for  example,  an 
agreement  beforehand,  to  submit  any  disputes  which  might 
arise  to  arbitration,  will  not  be  enforced.  Pearl  v.  Harris, 
121  Mass.  390.  But  Kansas  furnislies  an  exception  to  the 
rule.  Bcvey  v.  Carter,  19  Kan.  135.  If  a  reference  is  actu- 
ally made  by  consent  of  parties,  and  the  reference  fails  from 
any  cause,  the  parties  still  retain  their  standing  in  tiie  court 
for  a  trial  of  the  controversy.  Preston  v.  Morrow,  G6  N.  Y. 
452.  The  reference  is  not  necessarily  a  discontinuance  of 
the  suit,  unless  the  parties  intend  that  it  shall  be  so;  and  if 
the  referee  fails  or  refuses  to  act,  the  case  still  stands  for 
trial.     Heariie  v.  Brown,  67  Me.  156. 

§  432.  A  minor  cannot  be  bound  by  a  submission  any  mere.-) 
than  by  other  contracts.  The  disability  extends  even  to  ri.uhts 
of  action,  so  that  it  is  held  that  if  a  minor  releases  a  chiini 
for  damages,  oven  in  tort,  he  may  avoid  tlie  release;  and 
this  upon  the  ground  of  his  prcsunn-d  incapacity  to  asiun'tain 
how  much  damages  he  was  entitled  to.  So,  if  lie  submit  his 
claims  to  abitration,  he  is  not  l^ound  l)y  tlic  a-.ard,  l;ecausc  of 
his  presumed  incompetency  to  choose  suitable  arl)itrators.(//) 
And  in  a  case  of  this  kind,  (not  arbitrated,  indeed,  but  set- 
tled by  the  minor  himself,  and  wherein  the  court   lidd   the 

(^)Wyatt  »'.  Benson,  2:^  HaH).  :W(i.  (/<)Haker  v.  Lovctl,  (3  Mass.  SO. 


428  ARDITRATION. 

same  principle  prevailed,)  it  was  decided  that  the  matter 
could  be  submitted  to  a  jury,  which  would  then  be  authorized 
to  review  the  transaction,  and  the  plea  of  accord  and  satisfac- 
tion, and  allow  the  amount  which  had  been  paid,  and,  if  this 
was  found  too  small,  to  render  verdict  for  the  deficiency. (/;) 

§  433.  But  a  guardian  may  submit  to  arbitration  the  inter- 
ests of  his  ward  in  such  a  way  as  to  be  conclusive  as  a  bar 
to  an  action  by  the  minor  on  coming  of  age.  Thus,  even  in 
a  submission  for  an  assault  and  false  imprisonment  of  the 
ward,  it  was  held  the  guardian  could  bind  his  ward,  and  the 
court  said  thereon:  "It  is  difficult  to  conceive  how  it  should 
ever  have  been  doubted  whether  guardians  had  this  power,  or 
whether  they  were  not  bound  by  their  bond,  or  whether  an 
award,  under  these  circumstances,  did  not  put  an  end  to  all 
controversies  submitted  between  the  infant  and  other  party. 
That  an  infant  should  not  bind  himself  in  this  way  is  right ; 
but,  for  this  very  reason,  a  power  should  be  lodged  elsewhere  ; 
and  where  can  it  be  so  properly  entrusted  as  to  the  very  per- 
son who  has  the  care  of  all  his  property?  For  the  present 
plaintiff  does  not  appear  a  guardian  ad  litem  onl}',  and  must, 
therefore,  be  supposed  competent  to  judge  whether  a  suit  or 
arbitration  will  be  most  likely  to  promote  the  interest  of  his 
ward.  But  this  point  is  settled  by  Rohcrts  v.  Newhold,  where 
it  is  allowed  that  a  guardian  may  submit  for  an  infant;  and 
even  if  the  latter  gives  a  bond  himself,  it  is  not  void,  but  only 
voidable.  With  this,  also,  agrees  the  civil  law,  by  which, 
although  an  infant  cannot  bind  himself  by  a  submission,  yet, 
if  any  one  will  become  his  surety,  a  remedy  may  be  had 
against  the  latter  for  the  infant's  non-performance. "(i) 

In  Connecticut,  (in  1787,)  where  one  minor  committed  a 
most  cruel  injury  on  another,  the  parents,  on  both  sides,  sub- 
mitted the  matter  to  arbitration,  and  the  award  was  held  to 
be  conclusive,  as  to  the  minors,  as  well  as  the  parents; 
although  the  submission  and  the  award  included  the  parents' 
right  to  damages,  as  well  as  the  injured  son's  right,  without 
discriminating  between  them ;  and  this  was  placed  upon  the 

(A)Ibid.  (/)\Veed  v.  Ellis,  2  Caines,  (X.  Y.) 

255. 


ARBITEATION.  429 

ground  of  the  natural  guardianship  of  the  father.(./)  And 
much  more  reasonably  may  a  guardian  be  permitted  to  submit 
matters  pertaining  directly  to  the  estate  of  his  ward. (7, )  And 
it  has  been  held,  in  this,  that  where  a  submission  is  made  of 
matters  concerning  the  interest  of  the  guardian  individually, 
and  also  of  his  ward,  and  the  submission  does  not  require  a 
separation  in  the  award  of  the  two  interests,  the  award  can- 
not be  objected  to  on  the  ground  of  uncertainty  in  not  show- 
ing what  is  awarded  to  the  guardian,  and  what  to  the  ward, 
distinctively  ;  and  if  this  should  ever  become  a  material  ques- 
tion, in  a  future  suit,  parol  evidence  will  be  admissil)le  to  dis- 
tinguish the  two  interests. (/)  A  guardian  ad  litem,  however, 
cannot  thus  submit  in  behalf  of  his  wards,  because  he  must 
conduct  the  suit  under  the  direction  of  the  court — this  being 
the  purport  of  his  appointment ;  and  where  sucli  an -one  enters 
into  a  submission  for  himself  and  his  wards,  it  will  be  bind- 
ing upon  himself  as  to  his  own  interests,  but  will  not  be  bind- 
ing, in  any  way,  upon  the  wards.  (;»)  Says  the  Tennessee 
court,  on  this  matter:  "It  is  very  clear  that  the  power  and 
duty  of  such  guardian  are  limited,  and  strictl}^  confined  to 
the  defence  of  the  jjarticular  suit  in  wliich  he  is  appointed. 
He  is  to  defend  the  suit,  in  the  court  from  wliich  he  derives 
his  authority,  according  to  the  rule  and  principles  of  law 
applicable  to  the  case,  as  administered  in  that  tribunal,  and 
in  conformity  with  the  ordinary  mode  of  trial  and  practice  of 
the  court  in  similar  cases.  It  is  not  within  the  scope  of  his 
authority,  or  dut,y,  to  consent  to  change  the  tribunal  for  the 
trial;  or  that  the  decision  shall  be  upon  piinciples  other  than 
those  applica])le  to  like  cases  in  the  forum  in  which  the  suit 
is  pending.  His  special  and  restricted  jjowers  admit  of  the 
exercise  of  no  such  discretion." 

§  434.  Executors  a)id  administrators  are  autliori/ed  to  sub- 
mit clanns  pertaining  to  the  estate:  and,  in  New  York,  a 
requirement  of  vouchers,  and  an  aflidavit  tliercto.  is  held  not 

(,;)Beebe  «,  Traffoni,  Kirhy,  217.  (/jSlront;'    i>.    IScnmjon,     Is    AIj:. 

(A:)IIutchins  v.  .Jolin.son,  l'^  Conn.       J<iX. 
381_  (;//)Foil    »'.     Hiitllc,    ];{    S.    it    M. 

(.Miss.)  i:'.7. 


430  ARBITRATION. 

to  be  a  prerequisite  to  a  reference  under  the  statute  ;(h)  al- 
though, of  course,  the  claim  submitted  must  be  one  over 
which  the  administrator  lias  tlie  legal  control,  and,  in  respect 
to  personal  property,  choses  in  action,  etc.,  he  stands  in  place 
of  the  deceased,  and  has,  therefore,  the  whole  lc[/(tl  interest  in 
them,  for  the  purposes  of  settling  the  estate.  So  that,  having 
the  right  to  dispose  thereof,  release  personal  claims,  com- 
pound, etc.,  he  has,  per  conscquou'c,  the  right  to  submit  ;(o)  the 
award  being — as  would  be  a  judgment  in  court — if  adverse  to 
the  administrator,  against  the  goods  of  the  testator,  or  intes- 
tate de  houls  ti'statorls,  because  of  the  representative  charac- 
ter of  the  administrator. Q>)  And  the  right  to  sulnnit  is  held 
to  be  not  merely  statutory,  but  to  exist  at  common  \'dw.(q) 

But,  if  a  less  sura  should  be  awarded  than  the  administra- 
tor might  have  recovered  at  law,  it  is  held  that,  although  the 
award  might  be  binding,  yet  he  might  be  held  to  account  for 
the  deficiency  to  the  heirs  and  other  persons  interested  in  the 
estate  ;(r)  so  that  a  submission  involves  considerable  personal 
risk  in  some  cases. 

In  Maine  a  reference  of  "all  demands,"  by  an  adminis- 
trator, has  been  held  not  to  include  title  to  real  estate, (s) 
which  is  not,  indeed,  within  the  scope  of  an  administrator's 
relation  to  the  estate  which  he  represents,  anywhere. 

At  common  law,  in  all  cases,  an  administrator  was  held 
responsible  for  a  mistake  of  the  arbitrators  injurious  to  the 
estate  ;(^)  but  enabling  statutes  usually  take  away  this  peril. 
Yet,  in  Texas,  it  is  held,  however,  that  an  administrator 
should  never  submit  claims  to  arbitration  without  providing 
for  an  appeal,  and  that,  if  he  does  so,  the  submission  is  void, 
and  because  the  operation  is  against  the  polic}'  of  the  law, 
and  likely  to  be  "irretrievably  iniquitous ;"  and  so  an  award, 
under  such  defective  submissions,  may  be  set  aside,  on  mo- 
tion, or,  if  affirmed,  it  will  be  at  the  hazard  of  the  adminis- 

(7i)Russell  V.  Lane,  1  Barb.  524.  (?')Bean  v.  Farnam,  6  Pick.  271. 

(t>) Ailing  V.  Munson,  2  Conn.  695.  (.s) Kendall  v.  Bates,  35  Me.  .35H. 

(y>)Cottin  w  Cottle,  4  Pick.  455.  {/)Overly's    Ex'r  v.    Devisees,    1 

(y)Cliadboura    v.    Chadliouru,    9  Met.  (Ky.)  120. 
Allen,  173. 


ARBITRATION.  431 

trator  if  the  claim  should,  in  fact,  be  unjust  or  legally  invalid. 
The  court  say :  "The  administrator  would  be  persoiially  liable, 
at  common  law,  if  the  award  were  not  for  the  full  amount  of 
the  debt  really  due,  and,  on  the  like  principle,  he  should  be 
liable  for  an  unfounded  claim,  if  established  against  the  es- 
tate by  an  arbitration  to  which  he  has  submitted  by  his  vol- 
nntary  act.  But  this,  as  before  said,  would  be,  at  least,  very 
severe  upon  an  administrator,  if  arbitration  be  a  legal  mode  by 
which  claims  for  or  against  an  estate  may  be  recognized  and 
established.  If,  according  to  this  view,  an  administrator 
would  not  under  our  laws  be  held  responsible  for  submission 
to  an  arbitration,  to  the  extent  of  the  liability  incurred  by  the 
like  submission  at  common  law,  the  danger  to  which  mis- 
takes would  be  exposed  by  such  submission  would  be  most 
obvious  and  alarming.  An  arbitration  might  become  an  in- 
strument of  the  greatest  injustice  to  estates,  without  the  pos- 
sibility of  relief  from  any  quarter.  And,  such  being  the 
■consequences  naturally  flowing  from  such  submissions,  it 
would  seem  that  an  arbitration  is  an  improper,  and  must 
be  regarded  to  some  extent  as  an  incompetent,  tribunal  for 
the  adjustment  of  claims  affecting  estates,  especially  where 
the  claims  against  the  estate,  and  the  stipulation,  is,  as  it 
was  in  this  case,  that  the  award  shall  be  final. "(/') 

In  Louisiana  it  is  held  that  the  only  persons  who  can  dis- 
pute an  award,  under  a  submission,  by  an  administrator,  are 
heirs  and  creditors ;  and  these  can  ratify  such  award  so  as  to 
make  it  conclusively  binding,  even  in  the  absence  of  a  legal 
right  in  the  administrator  to  submit;  for,  "as  prohibition  is 
intended  to  protect  the  right  of  parties  interested,  submis- 
sions thus  made  are  not  absolutely  null,  but  their  want  of 
authority  may  be  cured  by  the  acquiescence  and  ratification 
of  the  parties  represented  by  them."(iO 

§  4-35.  As  to  the  power  of  an  att(n-ney  at  law  to  submit  tin; 
case  of  a  client,  it  is  perhaps  universally  recognized;  at  least, 
in  a  degree.  But  the  award  must  not  be  virtually  a  com- 
promise, in    the    form    of    an    award;   for  this  cannot    bind 

(«)Yarborouchw.  Lcggett,14Tex.  («)Latlicr  «.   Kuclial,   Vl  La.    Aiu 

680  696. 


432  ARBITRATION. 

.111  injured  party. (/r)  A  proj^er  reference  may  be  "by  oral 
consent,  in  open  court,  entered  on  the  minutes. "(.r)  And  it 
is  held  that  "an  autliority  to  prosecute  or  defend  a  suit 
implies  a  power  to  refer  it,  by  rule  of  court,  that  being  a 
legal  mode  of  prosecuting  or  defending. "(;/)  But  he  cannot 
bind  his  client  by  a  submission  by  bond  merely.  It  must  be 
under  a  rule  of  court,  (^j  And,  in  that  case,  a  formal  consent 
of  the  client  is  not  requisite,  for,  say  the  Georgia  courts 
"  Why  should  not  this  be  so  ?  An  attorney  may  confess  a 
judgment  against  his  client;  and  this  involves  every  thing,"(''/) 
and  in  the  progress  of  a  cause  an  attorney's  solemn  admis- 
sions are  binding  upon  his  client. (//)  But  he  has  no  jiower 
to  change  the  terms  of  a  submission,  made  by  the  parties 
before  he  was  employed  as  counsel.  There  must  be  a  pend- 
ing suit  before  the  submission,  in  order  that  the  attorney  may 
have  authority  to  submit,  and  the  submission  must  be  made 
after  he  has  undertaken  the  management  of  the  cause,  to 
give  him  control  of  it;(6')  and  then  it  is  within  the  general 
powers  of  an  attorney  to  submit.  Halkcr  v.  Parker,  7  Cranch. 
449.  Tliat  is,  in  court,  but  not  in  pais.  McGiiDiis  v.  Curri/y 
13  W.  Va.  30.  Nor  can  an  attorney,  witliout  the  client's 
assent,  delegate  an  authority  to  submit  to  arbitration.  Upright 
V.  Evans,  53  Ala.  108. 

In  Pennsylvania,  however,  it  has  been  held  that  a  party 
has  a  right  beforehand,  if  dissatisfied  with  an  agreement  of 
his  attorney  to  refer,  to  apply  to  the  court  where  the  agree- 
ment is  entered  to  have  it  set  aside  ;(f/)  that  is,  a  party  lias, 
nevertheless,  the  right  of  revoking  a  submission  entered  into 
by  his  attorney.  But,  as  to  the  general  right  of  an  attornev  to 
submit,  it  is  declared  that  there  is  no  force  in  an  objection 
that  an  attorney  cannot  be  allowed  to  deprive  his  client  of  the 
right  of  trial  by  jury,  because  no  one  disputes  his  authority  to 

{w)nolk(,T   »;.   Parker,  7   Cranch,  ('/) Wade  ti.  Powell,  31  Ga.  22. 

453.  (A)Beverly   v.   Stephens,   17  Ala. 

(.r)  Bates  v.  Visher,  2  Cal.  ;5;J7.  70."). 

(.V)BuckUind  v.  Conway,  10  Mass.  (r).Tenkins  v.  Gillespie.  10  S.  &  31. 

39  (J.                                        '  34. 

(s)Smith  V.  Bossard,  2  McCord,  (rf)Millar  v.  Criswell,  3  Burr.  449. 
(Ch.)  408. 


ARBITRATION.  433 

make  an  issue  of  law  by  putting  in  a  general  demurrer,  aud 
thus  give  the  decision  to  the  court  without  the  intervention  of 
a  jury.(t')  And  it  has  been  held  in  that  state  that  where  a 
rule  of  court  was  entered  on  the  part  of  the  plaintiffs  to  sub- 
mit a  cause  to  arbitration,  and  arbitrators  were  chosen  ac- 
cordingly, held  a  meeting  and  adjourned,  and  during  the 
adjournment  the  attorneys  entered  into  a  written  agreement, 
entitled  of  the  cause  pending,  which  provided  for  the  submis- 
sion of  all  matters  of  variance  between  the  parties,  of  every 
nature  and  kind,  without  regard  to  the  form  of  action  or  the 
pleadings,  to  the  arbitrators  then  chosen  or  others  appointed 
in  their  stead — the  award  to  be  final  and  conclusive,  and  the 
parties  waiving  the  right  of  appeal  and  of  inquisition  upon 
real  estate — the  submission  was  within  the  authority  of  the 
attorneys,  when  not  revoked  by  the  party  in  due  form;(/)  this 
being  the  party's  right,  in  all  cases,  if  exercised  in  time,(/y) 

This  submission  must  be  made  a  rule  of  court,  but  this  may 
be  done  by  reciting  the  act  under  which  it  is  made.  If  there 
is  no  agreement  to  make  it  a  rule  of  court,  the  court  cannot 
enter  judgment  on  the  award. (/i) 

•  §  436.  An  agent  may  bind  his  principal  in  all  submissions 
not  requisite  to  be  sealed.  And  the  rule  that  an  agent  cannot 
bind  a  principal  by  a  seal  does  not  apply  where  the  agent  signed 
a  submission  under  seal,  when  a  seal  was  not  required ;  for,  in 
such  a  case,  the  seal  is  merely  nugatory. (i)  And,  even  if  an 
agent  transcends  his  authority  in  making  a  submission,  the 
award  may  be  ratified  by  a  subsequent  adoption  of  it,  so  that 
it  will  be  as  conclusive  upon  the  principal  as  if  he  had  him- 
self executed  the  submission. (,/)  And,  if  tlie  principal  shouhl 
appear  at  the  hearing  before  the  arbitrators,  it  would  be  also 
a  waiver  of  all  objection  from  want  of  authority  in  the  sub- 
mission, (/i) 

If,  however,  an  agent  enters  into  a  submission  in  his  own 

(e)Wilsont).  Young,  9  Pa.  St.  102.  (/()Stokeley   «.   Kobinson,  34  Pa. 

(/)Binghain's  Trustees  v.  Guth-  St.  SIC. 

rie,  19  Pa.  St.  420.  (i)White  «.  Fo.x,  29  Conn.  :>ir-,. 

(6r)Colenian  v.  <irubl),  23  Pa.  St.  (j)Lowenstcin  v.   Lowenslcin,  37 

410.  Barb.  2,'')(j. 

(/cjDiednck  v.  Ricbley,  2  Hill,  272. 
v.l— 28 


4:34  ARBITRATION. 

name,  he  will  be  personally  liable;  and,  so,  if  one  enters  into 
a  submission  on  behalf  of  himself  and  others,  without  author- 
ity as  to  them.(Z)  And  even  if  he  signs  as  agent,  but  does 
not  disclose  the  name  of  his  principal,  unless  the  name  of 
the  principal  is  otherwise  known  to  the  other  party.(/?i) 

Even  the  agent  of  a  town,  appointed  to  compromise  a  dis- 
puted claim  for  damages  in  laying  out  a  road,  may  refer  the 
question  of  amount  to  arbitrators,  so  as  to  bind  the  town  by 
the  submission  and  award. (/i) 

Wliere  an  agent,  witliout  a  written  submission,  refers  the 
question  of  an  annuity  of  a  widow  in  lieu  of  dower,  she  will 
be  bound  by  the  award  if  she  afterwards  receives  payments 
according  to  its  terms. (o) 

Where  a  statute  requires  an  acknowledgment  of  the  sub- 
mission before  a  justice  of  the  peace,  and  an  acknowledgment 
recites  that  an  agent  appeared,  etc.,  the  presumption  is  that 
the  agent  had  authority,  and  a  court  may  enter  a  binding 
judgment  on  the  award  under  a  submission  so  acknowledged, 
even  without  any  proof  of  such  authority.  The  Michigan 
court  says,  thereon  :  "The  jurisdiction  of  the  court  must,  of 
course,  depend  upon  the  voluntary  submission  of  the  parties, 
and  one  purporting  to  act  as  an  agent  must  have  due  author- 
ity so  to  act,  in  order  to  bind  his  principal.  But,  in  all  cases 
of  jurisdiction,  the  law  establishes  certain  proceedings  as  pre- 
requisites, and  fixes  the  evidence  of  such  proceedings.  *  * 
AVhen  it  appears  by  the  certificate  [of  the  justice]  that  the 
party  appeared,  and  that  the  appearance  was  by  an  agent 
duly  authorized  for  that  purpose,  the  statute  having  'permit- 
ted appearance  in  this  manner,  the  necessary  inference  is 
that  the  agent  was  duly  authorized. "(/)) 

(?)Smitli  V.  Van  Nostrand,  5  Hill,  a  county  court  may  submit  the  in- 

41<,).  terests   of    the   county,  which   are 

(//ijWhisor    V.    Griggs,    5    Cush.  under  its  control  and  supervision, 

■210.  to  arbitration.    Remington  «.  Coun- 

(y/)^clioff    V.    Bloomtield,    8    Vt.  ty  Court,  12  Bush.  14S. 

472.  {o)Furber  e.  Chamberlain,  9  Fos- 

A  city  may  submit  to  arbitration,  ter,  405. 

and  entrust  the  selection  of  arbi-  (jJ)*^ity  of  Detroit  v.  Jackson,   1 

trators  to  the  city  attorney.     Kane  Doug.  (Mich.)  111. 
«.  Fond  du  Lac,  40  Wis.  495.     And 


I 


ARBITRATION.  435 

A  general  agent  must  have  a  special  authority  to  enable 
liim  to  submit  matters  of  his  principal  to  arbitration. (ry)  And 
an  agent  appointed  to  submit  a  claim  does  not  derive  au- 
thorit}',  even  from  this  special  appointment,  to  ratify  and 
confirm  an  award  when  made.(r)  And  where  an  agent  has 
authority  to  demand  and  sue  for  "all  moneys,"  etc.,  and  the 
principal,  in  the  written  grant,  says,  "subjecting  myself  to  be 
sued  through  him,  in  the  same  manner  as  if  I  were  person- 
ally present,"  it  is  held  this  does  not  authorize  him  to  sub- 
mit matters  in  dispute,  at  least  until  suit  has  been  brought 
thereon.  And,  again,  if  a  principal  says  to  his  agent,  "If 
you  can  honorably  and  fairly  settle  with  A.  out  of  court  for 
me,  do  so;  if  not,  let  the  court  and  jury  settle  this" — it  does 
not  include  the  power  of  submitting  the  controversy  to  arbi- 
tration, nor  will  an  authority  to  exercise  reasonable  discretion, 
or  submit  to  a  reasonable  sacrifice  ;(s)  nor  an  authority  to 
"settle.  "(^) 

§  437.  One  partner,  without  special  authority,  cannot  sub- 
mit the  interests  of  a  firm  so  as  to  bind  his  copartner; 
although  he  may  submit  his  own  interests  in  the  firm.(«j 
But  while  an  award,  as  •  an  award,  may  not  bind  other  part- 
ners, yet  it  may  sometimes  operate  as  an  extinguishment  of 
a  partnership  claim,  when  complied  with  by  the  submitting 
partner,  where  it  comes  under  the  general  power  of  a  partner 
to  receive  payment,  settle  the  affairs  of  the  firm,  and  execute 
releases  thereon. (^;) 

The  above  is  a  statement  of  the  general  rule;  but  the 
authorities  are  not  uniform,  and,  in  some  states,  the  disabil- 
ity of  a  partner  is  held  to  be  confined  to  submissions  under 

(g')Trout  v.  Emmons,  29  111.433.  the  contract,  and  an  award  thereon, 

(/•)Bullitt  V.  Musgrave,  3  Gill,  50.  obtained  against  the  complainant's 

(s)Scarborough    v.    Reynolds,   12  protest,  and  b}- the  assignee's  decep- 

Ala.  2.t7.  Hon,  does  not  prevent  a  decree  for 

(^)IIul)cr  V.  Zimmerman,  21  Ala.  specific  performance.     Lawrence  v. 

488.     And,  in  like  manner,  a  power  Emson,  31  N.  J.  Eq.  67. 

to  "settle,"  on  an  assignment  of  a  (««)Karthaus  v.  Ferrer,  1  Pel.  (U. 

complainant's  interest  in  a  contract,  S.)  228. 

does  not  authorize  the  assignee  to  («)Buchanan  v.  Curry,  19  Jolin.s, 

include  it  in  a  general  arbitration  143, 

between  him  and  the  other  party  to 


436  ARBITBATION. 

seal;  as  in  Pennsylvania, (w)  where  this  is  held  to  rest  on 
the  ground  that,  "whatever  is  the  nature  of  the  contract, 
there  is  no  doubt  but  that  the  acts  of  every  single  partner 
in  transactions  relating  to  the  partnership  bind  the  whole;" 
and,  in  Ohio,  where  the  partners  are  joint  parties  to  a  pend- 
ing suit;(,r)  and,  in  Kentucky,  where  also  the  disability  is  con- 
lined  to  sealed  instruments  of  submission. (,?/) 

It  seems  to  me  that,  while  the  great  weight  of  authority  is 
doubtless  on  the  other  side,  these  dissenting  authorities  have 
the  superior  reasoning  with  them.  It  appears  to  be  an  irre- 
sistible deduction  from  the  acknowledged  right  of  a  partner 
to  act  authoritatively  in  all  matters  of  contract  concerning 
the  partnershij)  business  and  interests,  so  as  to  bind  the 
firm,  that  he  has,  therefore,  a  right  to  bind  them  by  a  con- 
tract of  submission.  Thus  ssij  the  supreme  court  of  Kentuck}', 
in  the  case  last  cited,  in  the  foot  notes:  "It  will  be  seen,  by 
examining  a  more  modern  and  lucid  author — Gow  on  Part- 
nership— that  he  makes  but  a  single  exception  from  the  power 
of  one  partner  to  bind  another  in  all  matters  touching  the 
partnership  concerns,  and  that  is,  the  case  by  deed;  and 
he  summarily  and  lucidly  lays  down,  and  by  indubitable 
authority  suj)ports,  principles  which  fully  sustain  the  doc- 
trine that  one  partner  can  bind  another  in  a  reference  to 
arbitration  by  an  instrument  not  sealed;  and,  what  is  more 
remarkable,  he  draws  a  different  principle  from  the  ease  of 
Strangford  v.  Green  from  that  drawn  by  his  predecessors, 
Watson  and  Kyd;  and  that  is,  that  one  partner  who  makes  a 
submission  to  arbitration  is  bound  to  perform  the  award, 
although  his  copartner  was  no  partner  to  the  submission. 
This,  we  conceive,  is  the  most  correct  deduction  from  that 
obscure  authority.  It  has  also  been  well  observed  in  argu- 
ment that  both  Kyd  and  Watson,  in  making  the  exception 
which  they  have  made,  have  laid  down  a  j)osition  incompat- 
ible with  other  principles  maintained  by  them.  It  is  clear, 
according  to  the  position  of  Watson,  that  one  partner  may 

(M)Taylor  «.  Coryell,  12  S.  &  R.  (.r)VVilcox  v.  Singletary,  Wright, 

248.  421. 

(.i/)Southard  v.  Sleek-,  3  Monroe,  435, 


ARBITRATION.  437 

not  only  bind  his  copartner  in  all  unsealed  instrnmeuts, 
toncliing  partnership  concerns,  but  he  can  sell  the  stock  in 
trade,  transfer  the  company  debts,  and,  even  by  a  release 
under  seal,  may  release  a  debt  due  tiie  firm  without  the 
express  assent  of  his  copartner.  And  it  is  laid  down,  as  a 
general  rule,  that  any  one  who  is  capable  of  making  a  dispo- 
sition of  his  property,  or  a  release  of  his  rights,  may  make  a 
submission  to  an  award.  It  is  difficult,  and  perhaps  impos- 
sible, to  give  a  satisfactory  reason  for  prohibiting  one  partner 
to  bind  the  other  by  submission  to  an  award,  and  allow  him 
at  the  same  time  equal  or  greater  powers  in  every  other 
respect.  The  power  given  to  one  partner  to  bind  his  fellow 
is  a  matter  of  great  convenience  to  the  partners  themselves, 
and  enables  them  to  transact  business  with  equal  facility, 
without  a  special  authority  for  every  act,  when  they  reside 
in  different  countries ;  and  it  redounds  greatly  to  their  bene- 
fit, because  they  thereby  enhance  their  credit  by  binding  the 
funds  of  each  to  strangers,  who,  in  their  turn,  are  benefited 
by  a  security  without  the  signature  of  each.  "Why,  then, 
should  they  be  prohibited  from  submitting  their  differences 
with  strangers  to  this  peaceable  and  oftentimes  convenient 
mode  of  adjustment?  Indeed,  it  is  said  that  one  partner 
may  enter  an  appearance  for  another  in  court,  and  thus  bind 
him  by  a  legal  proceeding.  Could  he  not  by  the  same  rule 
take  every  step  in  a  suit  for  his  copartner,  and  asscnf  to  a 
rule  or  order  of  court  submitting  the  suit  to  a  reference.  If 
so,  it  must  be  clear  that  he  can  do  so  without  such  rule  by  an 
instrument  of  writing  in  the  partnership  name." 

I  do  not  think  this  is  adequately  answered  by  the  opinion 
in  13  Barbour,  where  it  is  indirectly  reviewed.  But  I  will 
give  the  language  of  the  court,  and  thi-  render  may  here  com- 
pare them  together,  in  a  connected  view,  and  see  which  lias 
the  better  reason,  in  his  judgment.  Says  IliiJ/lxml,  J.,  de- 
livering the  opinion  of  the  court:  "The  ride  of  law,  it  seems 
to  me,  is  that  one  of  several  partners  in  a  trading  firm  has 
no  implied  power  or  authority,  arising  from  the  partnershii) 
relation,  to  refer  to  arbitration  any  partnership  interest  or 
controversy.     The  principle  is  miiversal  in  its  application, 


43  y  ARBITRATION. 

unaffected  by  tlie  question  whether  the  submission  is  by  simple 
agreement  or  by  specialty.  The  reasons  on  which  the  rule 
is  grounded  are  stated,  with  fullness  and  great  clearness,  by 
Justice  Story,  in  his  Law  of  Partnership,  §  114:  'It  is  not 
within  the  scope  of  the  ordinary  business,  or  powers,  or 
authorities  of  the  partnership, — and  the  reason  that  the 
award  may  call  upon  the  partners  to  do  acts  which  they 
might  not  otherwise  be  compellable  to  perform,* — but  the 
soundest  reason  seems  to  be  that  it  takes  the  subject-matter 
from  the  ordinary  cognizance  of  the  established  courts  of  jus- 
tice,! which  have  the  best  means  to  investigate  the  merits  of 
the  case  by  proper  legal  proofs  and  testimony;  and  as  the 
means  of  arbitrators  to  accomplish  the  same  result  are  nar- 
row and  wholly  inadequate,  it  ought  not  to  be  presumed  that 
the  partners  meant  to  waive  their  ordinary  legal  rights  and 
remedies,  unless  there  is  some  special  delegation  of  authority 
to  that  effect,  either  formal  or  informal.'  In  illustration  of 
the  second  reason  above  suggested,  it  may  be  observed  that 
if  the  agency  was  once  admitted,  then,  doubtless,  a  clause 
might  be  inserted  in  the  submission,  under  the  statute  in 
relation  to  arbitrations  between  individuals,  authorizing  a 
judgment  of  a  court  of  record.  This  would  plainly  contra- 
vene that  well-settled  rule  of  law  that  one  partner  cannot 
confess  a  voluntary  judgment,  even  to  bind  the  partnership 
interests  and  property,  (1  Wend.  311;  9  Wend.  437;)  and, 
of  course,  cannot  indirectly,  by  means  of  a  volnntaiy  sub- 
mission, accomplish  the  same  result ;  and  especially  not, 
when  the  judgment,  if  sustained,  would  be  a  charge  not  onh- 
on  the  partnership  effects,  but  upon  the  individual,  real  and 
personal  estate  of  the  members  of  the  hrm.+ 

*Plainl\-,  this  reason  has  no  force,  the  firm  business  would  be  ipsofndo 

l)ccause  a  submission  b}'  a  partner  void. 

would  be  a  partnership  submission,  tAVhich  is  an  equally  good  roa- 
and  therefore  only  authorize  such  son  for  discouraging  all  arbitration 
an  award  as  would  fall  strictly  — which,  on  the  contrary,  courts  of 
wiiliiri  the  limits  of  the  partner-  justice  are  said  to  favor,  as  a  peace- 
ship  l)usiness,  wherein,  also,  the  ful  and  inexpensive  mode  of  termi- 
submission  itself  must  wholly  be  nating  controversies, 
conlii.c  i.  "Whatever,  in  the submis-  JThis  might  have  foi-ce  were  it 
sion  or  award,  would    be    without  not   that    the  interests  of  tlic  siili- 


ARBITRATION.  439 

"The  precise  question  under  review  has  not  been  settled, 
in  this  state,  by  any  adjudication  to  which  my  attention  has 
been  directed.  There  are  several  decisions  to  the  effect  that 
a  sealed  submission  is  invalid,  (9  Johns.  285;  19  Id.  137;  1 
Wend.  326;)  but  these  cases  all  rest  upon  the  well-estab- 
lished doctrine  that  the  partner  cannot  bind  another  by  seal 
without  special  authority.  The  question  of  the  validity  of  a 
submission  by  simple  agreement  was  not  raised,  discussed,  or 
necessarily  assumed  in  the  decisions;  and  hence  the  cases 
are,  in  no  respect,  authority  on  the  point.  Chief  Justice 
Kent,  in  his  Commentaries,  (3  Kent,  49,  §  43,)  announces  the 
general  rule,  without  distinguishing  as  to  the  character  of 
the  submission.  He  says:  'Nor  can  one  partner  bind  the 
firm  by  a  submission  to  arbitration,  even  of  matters  arising 
out  of  the  business  of  the  tirm.  The  principle  is  that  there 
is  no  implied  authority,  except  so  far  as  it  is  necessary  to  carry 
on  the  business  of  the  firm.'  This  is  the  well-established 
doctrine  of  the  English  courts.  Stead  \.  Lolh,  3  Bing.  101, 
is  a  leading  case,  referred  to  with  approval  by  both  English 
and  American  publicists.  The  same  doctrine  is  held  in  the 
supreme  court  of  the  United  States.  Karthons  v.  Fener,  1 
Pet.  222.  In  several  states  of  the  Union — in  Pennsylvania, 
12  S.  &  R.  243;  Kentucky,  3  Monroe,  436;  and  Ohio,  Wright, 
420 — a  contrary  rule  of  law  has  been  held,  recognizing  the 
distinction  that  a  submission  by  simple  agreement  is  binding, 
although  one  by  specialty  is  not.  But  I  cannot  perceive  any 
sound  reason  for  the  distinction.  Having  no  common  seal, 
one  partner  cannot  bind  his  associates  by  specialtj';  and  by 
the  modern  law  a  seal,  being  regarded  as  but  a  technicality, 
doubtless  may  be  disregarded  when  affixed  by  one  partner  to 
partnership  contracts  or  transactions  whore,  from  the  nature 
of  the  business,  or  instrument,  a  seal  was  unnecessary. "(.:) 
In  Massachusetts  it  has  been  held  that  where  a  submission, 
entered  into  under  the  statute,  is  signed  by  all  the  })artners 
of  a  firm,  but  acknowledged  only  by  part,  it  operates  to  de- 

mitting   partner  are  also  involved      personal   interests  are  a  siifetriuinf 
with  those  of  the  others,  so  that  his      :i<,fainst  abuse. 

(z)Harrington  v.  Illghain,  1.'^)  F>arb.  GGl. 


440  ARBITRATION. 

pi'ive  the  arbitrator  of  all  jurisdiction,  and  an  a^vard  cannot 
be  enforced,  even  against  the  one  acknowledging  the  submis- 
sion ;  upon  the  ground  that  a  strict  conformity  to  the  statute 
is  necessary  to  the  acquiring  of  any  jurisdiction, (a)  and  the 
submission  must  show  who  are  the  members  of  the  firm  with 
exactness,  (?>) 

Where  one  who  was  a  Frenchman,  and  understood  the 
English  language  quite  imperfectly,  was  present  at,  and  to 
an  extent  participated  in,  a  conversation  wherein  his  partner 
finally  agreed  to  arbitrate  the  matter  in  dispute,  he  was  held 
not  bound  by  his  j)reseuce,  nor  by  his  conversing  about  the 
affair,  unless  it  further  appeared  that  he  intentionally  as- 
sented to  a  reference  by  his  partner,  (c) 

§  438.  The  rule  is  the  same  in  regard  to  joint  owners  who 
are  not  partners — one  cannot  bind  another  without  special 
authority,  (V/)  and  herein  tbe  reason  is  ver}-  much  stronger 
than  in  regard  to  partners,  as  I  judge. 

Where  those  having  a  joint  interest  agree  to  submit  jointly, 
it  has  been  held  that  the  submission  also  includes  a  several 
award  as  to  each,  unless,  of  course,  the  terms  of  the  submis- 
sioQ  expressly  confine  the  award  to  joint  interests.  The  rule 
is  thus  stated :  "It  is  said,  in  Baspole^s  Case,  8  Coke,  93,  that 
if  tw^o  on  the  one  part  and  one  on  the  other  part  submit 
themselves,  the  arbitrator  may  make  an  arbitrament  between 
one  of  the  two  of  the  one  part  and  the  other  of  the  other  part, 
and  it  will  be  good.  And  so  the  rule  is  laid  down  in  CJiap- 
)ii((ii  V.  Ihtlfon,  1  Plowd.  289,  citing  2  R.  3.  The  case  in  the 
Year  Book,  2  E.  318,  referred  to  by  Plowden,  is  thus  stated 
by  Kyd  on  Awards,  157 :  Where  the  submission  was  between 
three  on  the  one  side,  and  one  on  the  other,  of  ail  actions  and 
demands  between  them,  it  was  held  that  the  arbitrators  had 
an  authority  to  make  an  award  of  all  joint  matters  between 
the  three  and  the  one,  and  also  of  all  matters  severalltf*  be- 

((^OAliliott  '/!.  Dexter,  6  Cusb.  lOS.  where  there  are  two  joint  suits,  and 

(ij  Wesson  •«. Newton, lOCush. 115.  also  individual  suits,  against  a  de- 

((•)>Iartia  v.  Thraslier.  40  Vt.  464.  fendant,  and  the  cases  are  referred, 

lf?)Eastman  ».  Burleigh,  2  N.  H.  the  whole  may  be  included  in  a  con- 

487.  soliduted  award.    Vannah  «.  Carney, 

*And   so   it   has  been  held  that  69  Me.  221. 


ABBITRATION.  441 

tween  the  one  aucl  atnj  one  of  the  three;  and  Brook,  in 
abl-idging  the  case,  says  this  is  good  hiw ;  but  he  denies  that 
what  follows  is  good .  law,  viz.,  that  the  arbitrator  has  an 
authority  to  decide  on  any  matter  between  any  two  of  the 
other  three.  See,  also,  Yin.  Ab.,  Arbitrament  D,  pi.  5,  and 
note.  In  Lihtral  v.  Field,  1  Keb.  885,  p.  1,  47,  it  was  held 
that  an  award  between  one  of  one  side  and  one  of  another  is 
sufficient  on  a  submission  by  several.  In  Athelstone  v.  Moon 
(&  Willis,  Comyn,  547,  a  motion  was  made  for  an  attachment 
for  not  jjerforming  an  award.  The  award  was  that  Willis 
should  pay  a  sum  of  money  due  by-  him  to  the  plaintiff.  The 
submission  was  of  all  matters  between  the  parties,  without 
saying  between  them  or  either  of  them;  and  objection  was 
taken  that  this  must  be  understood  of  joint  demands  of  the 
plaintiff  against  both  defendants,  and  so  the  award  was  not. 
good.  But  the  court  disallowed  the  objection,  and  said  a 
submission  of  several  persons  of  all  matters  of  difference  be- 
tween them  imports  a  submission  of  all  matters  that  either 
had  against  the  other,  jointly  or  severally.  I  do  not  find  that 
this  doctrine  has  been  denied  in  any  of  the  more  modern 
cases. "(e) 

Some  of  those  having  a  joint  interest  may,  on  the  same 
principle,  sever  in  the  submission,  and  make  an  agreement 
binding  them  alone;  and  others  may  come  in  afterwards, 
and,  by  submitting,  adopt  the  agreeuient.f/)  And  so  adult 
heirs  may  submit,  although  there  are  minor  heirs  interested 
in  the  subject,  and  the  award  will  bind  the  adults;  and 
that,  too,  when  the  subject-matter  is  an  equitable  title  to 
lands.  (</) 

§  430.  As  to  matters  concerning  husband  and  wife,  in  gen- 
eral, a  husband  may  submit  to  arbitration  his  own  rights,  de- 
rived through  the  wife;(/<)  but  not  lier  rights  as  to  her  sep- 
arate property. (i)  Before  the  recent  statutes,  it  was  proper 
for  the  wife  to  join  her  husband  in  relation  to  title  to  her 

(e)Fifller  v.  Coopt'v,  10  Wond.  2Si).  (/().M(:("oinb  v.  Tiniior.  14  S.  it  M 

(/)Smith  V.  Virgin,  33  Mc.  If):!  IIP. 

(,7)Boyd's     Heirs     v.    Magrnder's  (*)Fort  v.  Jiatlle,  Ki  S.  &  M.  \31. 
Heirs,  2  Robinson,  (Va.)  761. 


442  AKBITRATION. 

lands, (7)  and  also  as  to  "claims  and  demands. "(/c)  And.  an 
agent  of  a  wife  and  of  her  husband  may  be  authorized,  at 
the  same  time,  to  submit  for  both ;  and  if  this  be  done,  under 
the  supposition  that  title  was  in  the  husband,  which,  by  the 
award,  is  found  in  the  wife,  the  award  is  yet  binding  on  the 
wife.  (7) 

Separate  projDerty  acts  usually  remove  the  common-law 
disability  of  a  married  woman  to  submit  matters  to  arbitra- 
tion, (;»)  and  they  may  enter  into  a  valid  submission,  even  as 
to  damages  by  flowage  to  their  separate  lands. (/i) 

But  formerly  a  submission  of  a  femme  covert  was  void  ;  that 
is,  unless  joined  with  her  husband. (o) 

§  440.  In  regard  to  the  power  of  a  corporation  to  refer,  it 
is  held  by  the  highest  authority  that,  although  the  charter  of 
a  company  does  not,  in  terms,  give  the  power  to  refer,  yet  a 
power  to  sue  and  be  sued  necessarily  includes  it,  since  this 
is  one  of  the  modes  of  prosecuting  a  suit  to  judgment,  and  a 
corporation  may  lawfully  take  any  step  that  an  individual 
may  in  bringing  a  controversy  to  final  judgment  ;(p)  and  it 
may  be  by  attorne^^C^)  or  even  by  subsetjuent  ratification  ;(r) 
as,  for  instance,  where  officers  of  a  railroad  company,  en- 
trusted with  authority  to  make  purchases,  were  in  the  habit, 
without  express  authority,  of  agreeing  upon  prices  by  refer- 
ence to  arbitrators,  and  the  awards  in  such  cases  were  paid 
by  the  financial  officers  of  the  company  under  a  general  reso. 
lution  to  pay  the  amount  they  directed,  it  was  held  that  the 
awards  were  binding,  because  the  company  had  ratified  the 
acts  of  the  officers  by  treating  them  as  if  authority  actually 

(j)West()u  v.  Stuart,  IFairf.  (Me.)  her  bj^  a  submission.     Coleman  «. 

330.  Semmes,  5(j  Miss.  321. 

(A;)French  and  Wife  v.  Kidiard-  («)Humsey  ».  Leek,  5  Wend.  21. 

son,  5  Cush.  452.  In  New  Hampshire  a  libel  for  di- 

(i()Smitli  V.    Sweeney,   35   jST.    Y.  vorce  ma^'^  be  referred,  by  statute. 

294.  Moore  v.  Moore,  56  N.  H.  512. 

(//()Palmer  v.  Davis,  28  N.  Y.  248,  (^)  Alexandria  Canal  Co.  v.  Swann, 

250.  5  How.  (U.  S.)  8lt. 

(/OHuren    v.    Getchell,     55    Me.  (9)lsaacs  v.  Beth  Hamedash  Soc. 

24J.  1  Hilton,  472. 

And  a  husband,  as  agent  and  gen-  (/')lbid,  470. 
eral  manager  for  his  wife,  may  bind 


ARBITRATION.  443 

existed,  (s)  A  municipal  corporation  may  submit  to  arbi- 
trate, by  resolution  or  ordinance,  which  needs  not  to  be  under 
the  corporate  seal.(^) 

Selectmen,  however,  are  not  empowered,  by  virtue  of 
their  office,  to  submit  for  a  town  a  question  concerning  the 
settlement  of  a  pauper.  (?t)  But  they  may  submit  any  claims 
which  they  are  authorized  to  audit  and  adjust;  as,  for  ex- 
ample, a  claim  for  building  a  bridge, (v)  or  matters  concern- 
ing the  widening  of  a  street. (z(?) 

An  insurance  company  will  be  bound  by  the  submission  of 
a  secretary,  under  the  corporate  seal.(j;) 

§  441.  District  attorneys  of  the  United  States  appear  to 
be  an  exception  to  the  general  rule  that  attorneys  may  sub- 
mit claims  in  behalf  of  their  clients  to  arbitration ;  and  it  is 
held  that,  without  a  special  act  of  congress,  they  cannot  sub- 
mit claims  by  the  United  States  for  damage  by  flowage,  nor 
any  other  claims ;  and  this  has  been  placed  on  the  constitu- 
tional grounds  that  all  judicial  power  is  vested  in  the  courts  ; 
and  it  has  been  questioned  whether  even  congress  can  vest 
it  in  any  tribunals  not  organized  by  itself.  (?/) 

§  442.  It  is  no  objection  to  an  award  that  a  party  was 
under  arrest  when  he  executed  the  submission ;  since  this,  in 
itself,  does  not  constitute  duress.  (^) 

§  443.  As  to  the  subject-matter  of  an  arbitration,  it  may 
embrace  almost  anything  not  of  a  criminal  nature,  concern- 
ing which  there  is  a  doubt;  excepting,  indeed,  mere  minis- 
terial matters,  such  as  appraisement,  valuations,  etc.  It  is 
not  essential,  even,  that  there  should  have  been  a  previous 
controversy. (rt)  But  tliere  must  be  something  to  submit  to 
the  judgment  and  discretion  of  an  arl)itrator;  and  it  must 
not  be  a  mere  calculation  which  can  be  performed  by  an  ac- 
countant.(/^)     It  has  been  stated,  on  principle,  thus:    "A  dis- 

(.s)Wood  V.  R.  K.  4  Soldon,  1G7.  (.(;)Insinan(c  Co.  r;.  ('.rillin.  :;  liid. 

(0 Brady  v.  Brooklyn,  i  Barb.  584.  277. 

(w)Griswo]d      v.     Si  on  in -ion,     5  (//)L'.  S.  «.  Ames,  Wood  &  M.  8i). 

Conn.  3tJ7.  (2)Sli(,-phard  «.  Watrous,  :i  Ctiincs, 

(«)l)ix  V.  Dummerston,  19  Vt.  205.  U^. 

(ic)Boston  V.  Brazer,  11  iMass.  448.  («)Brown  v.  WluTler.n  Conu.3iil. 
(i)Kelly  v.  Crawford,  5  Wall.  790. 


44^:  ARBITRATION. 

tinetioii  is  justly  made  between  the  reference  of  a  collateral 
or  incidental  matter  of  appraisement  or  calculation,  the  de- 
cision of  which  is  conclusive  of  nothing  as  to  the  rights  of 
the  parties,  except  the  mere  appraisal  or  statement,  and  a 
submission  of  matters  in  controversy  for  the  purpose  of  final 
determination.  A  reference  of  a  collateral  fact,  or  the  sub- 
mission of  a  particular  question,  forming  only  a  link  in  the 
chain  of  evidence,  is  not  calculated  to  put  an  end  to  the  con- 
troversy; it  barely  substitutes  the  judgment  of  the  referee  in 
the  place  of  evidence  on  that  incidental  or  collateral  matter, 
leaving  the  controversy  open.  Such  a  decision  is  not  an 
award,  and  a  reference  of  such  a  matter  is  not  a  submission 
to  arbitration. "(c)  This  principle  seems  well  founded;  but 
it  has  not  passed  unchallenged,  even  in  New  York,  and  it  has 
been  held  there  that  the  distinction  drawn  is  not  really  ten- 
able, (ci)  But,  as  to  authority,  the  case  previously  cited, 
(Kelly  V.  Crawford,  5  Wall.  790,)  in  the  United  States  supreme 
court,  will,  I  think,  override  the  opposite  decisions;  and  as 
to  reason,  this  seems  clearly  on  the  side  of  only  allowing  that 
to  be  an  arbitration  which  settles  the  substance  of  disputed 
matters,  and  determines  controversies,  or  that  which  may 
become  controversy,  and  not  that  kind  of  determination  which 
requires  no  judgment  or  discretion,  but  only  calculation  or 
mechanical  skill. 

An  award  cannot  properly  embrace,  with  other  matters, 
the  costs  of  a  criminal  prosecution  instituted  by  one  party 
against  the  other;  yet,  if  it  does  so,  while  the  portion  relat- 
ing to  such  costs  will  be  regarded  null,  the  remainder  may  be 
upheld  and  enforced. (g)  But  Pennsylvania  seems  to  furnish 
an  exception  to  the  rule  that  criminal  matters  cannot  be  sub- 
mitted; for  it  has  there  been  held  that  prosecutions  for 
assault  and  batter}^  can  be  submitted,  on  the  ground  that 
these  "may  easily  be  adjusted  with  the  consent  of  the  parties, 
and   that   the   statute   allows   such   settlements."     And  the 

(c)Garr  ».  Gomez,  9  Weud.  661.  embrace   costs    of    the  arbitration, 

(rflUndcrliill  v.  Van  Cortlandt,  17  and  even  the  fees  of  the  arbitrators 

Johns.  405.  themselves.    Burnell »'.  Everson,  50 

(e)IIarriugton  «.  Brown,  9  Allen,  Vt.  450. 

579.     In  a  civil  case  an  award  mav 


ARBITRATION.  445 


(H)urt  says :  "Awards  are  to  be  favored,  as  they  enable  suit- 
ors to  settle  their  disputes  in  the  easiest,  cheapest,  most  ex- 
peditious, and  most  equitable  manner.  Nothing  more  is 
required  than  that  they  should  be  so  drawn  as  to  make  an 
end  of  the  matters  in  dispute,  and  contain  nothing  contrary 
to  law;  and  that  they  should  not  pass  beyond  the  bounds  of 
the  subject  submitted." (/)  Yet,  no  doubt,  there  it  would 
not  be  held  that  strictly  criminal  matters  could  be  submitted 
— the  ground  above  stated  being  that  the  statute  allows  par- 
ties to  settle  prosecutions  for  assault  and  battery;  thus,  in 
reality,  bringing  the  case  within  the  rule,  so  that  it  consti- 
tutes no  exception  further  than  in  appearance  only. 

Real  estate  matters,  and  matters  of  boundary,  may  prop- 
erly be  submitted  to  arbitration,  unless  where  specifically 
forbidden  by  statute — as  in  New  York — and  a  general  sub- 
mission will  embrace  them;(f/)  and  claims  to  the  legal  title 
may  be  included,  if  the  submission  is  under  seal;(/i)  that  is, 
where  a  seal  is  required  to  a  deed  or  instrument  of  convey- 
ance. Parol  submissions  are  upheld,  in  all  cases,  where  the 
claim  is  not  directly  for  the  title. (i) 

Submissions  will  always  be  construed  liberally,  according 
to  the  true  intent  of  the  parties,  as  to  common-law  refer- 
ences; although  statutory  authority  is  more  strictly  infer- 
preted  and  limited,  (j) 

Eeferees  cannot  enter  judgment  of  nonsuit  or  on  default. 
Ray  V.  Austin,  56  N.  H.  36.  Yet  they  may  find  that  there  is 
no  cause  of  action,  and  the  court  may  affirm  that  decision; 
but  even  then  it  seems  the  court  may  refer  the  matter  a  sec- 
ond time,  if  the  plaintiff  makes  it  appear,  by  affidavits,  that 
he  can  supply  the  proof  lacking  on  the  first  reference.  Ban- 
nhter  v.  ExWs,  43  Wis.  42T. 

(/)NobkM). Peebles,  13  S.  &  K.  319.  in  atniet  of  liind.  as  to  (|Uiii)ti1y  and 

(7)Penniman  v.  Kechnan,  13  Met.  value,  it  was  held  sutUeient  that  the 

(Mass.)  382.  arhilrators  were  vert)all3'  iniornied 

(/tjAkely  v.  Akely,  16  Vt.  451  of  the  submission,  tliouL!;h  the  arli- 

(^■)lSee  Mor.se  on  Arb.  and  eases  cles  of  submission  were  not  before 

cited,  pp.  55,  56.  ll><'"i  ^^''"-"  ••'^'.V  ^^■•''"'  *^"  ^'"^^  ••'*' 

And  where  arbitrators  were  ap-  land.     I5ow  v.  AVilson,  48  Md.  365. 

pointed  to  ascertain  the  deficieu<-y  (./)Ilii«l.  57-60. 


446  ARBITRATION. 

Submissions  may  be  made  conditional  upon  subsequent 
facts  connected  with  the  arbitration. (A;) 

In  general,  a  submission  of  a  cause  pending  in  court,  with- 
out a  rule  of  court,  and  a  stipulation  that  judgment  may  be 
entered  on  the  award,  works  a  discontinuance. (/)  But  where 
a  submission  was  of  matters,  a  part  of  which  was  in  suit, 
and  the  award  was  that  if  a  certain  sum  was  not  paid  to  the 
plaintiff  the  suit  should  go  on.  it  was  held  that  the  submis- 
sion and  award  were  no  discontinuance  of  the  suit.(m) 

A  submission  may  always  be  revoked  before  an  award  is 
rendered,  on  notice  given,  unless  there  is  an  express  stipula- 
tion to  the  contrary.  But,  where  a  party  has  taken  and  en- 
joyed the  benefits  of  an  award,  he  cannot  then  object  to  it, 
even  on  the  ground  that  the  submission  was  made  by  his 
his  agent,  without  authority.  Perrti  v.  MiUigan,  58  Ga.  479, 
A  reference  under  a  rule  of  court  cannot  be  revoked  except 
by  obtaining  a  discharge  of  the  rule.  Knapp  v.  Fisher,  49 
Vt.  94.  Nor  can  a  party,  in  some  states,  revoke  a  submis- 
sion after  hearing  has  commenced;  and,  even  before,  if  the 
submission  is  in  writing  the  revocation  must  likewise  be  in 
writing.     Shroyer  v.  Bash,  57  Ind.  349. 

An  arbitrator  may  be  disqualified — as  a  judge  may — but 
only  by  such  interest,  relationship,  or  prejudice  as  was  not 
known  to  the  objecting  part}'  at  the  time  of  entering  into 
the  submission. (/i) 

(/fc)Merritt  v.  Thompson,  27  N.  Y.  arbitrators,    and    the    other    party 

225.  knows  it,  the  latter  cannot  after- 

(^)Larl5in  «.  llobbins,  2  AVend.  505;  wards  object  to  the  award  on  that 

Heslep  V.  San  Francisco,  4  Cal.  1.  account.   Noyes  v.  Gould,  57  N.  H. 

(??i)Elliott  V   Quimby,  13  N.  H.  20.     And  a  city,  accepting  as  an 

ISl.  arbitrator  one  who,  as  alderman, 

(n)See  Morse  on  Arb.  and  author-  had  been  active  in  the  council  as  to 

ities  cited,  c.  4,  p.  99,  etc.  the  matter,  cannot   object   to   the . 

It  is  no  disqualification  that  an  award  on   the  ground  of   the  dis- 

arbitrator  was  formerly  counsel  for  qualification    of     such    arbitrator, 

one  of  the  parties  in  another  action,  Kane  v.  Fond  du  Lac,  40  Wis.  495. 

unless  there  has  been  an  intentional  An  award   may  be   invalidated   by 

concealment  of  that  fact  from  the  the  failure  of  one  of  the  arbitrators 

opposite  party.     Goodrich  v.  Hul-  to  take  the  prescribed  oath.     Hep- 

bert,  123  Mass.  190.     And  if  one  of  burn  «.  Jones,  4  Col.  98. 
the  parties  furnishes  liquor  to  the 


NATURALIZATION.  447 


CHAPTER  XIII. 

NATURALIZATION. 

i  444.  Duty  of  congress  to  provide  for  naturalization. 

445.  Naturalization  a  judicial  act. 

446.  What  courts  may  act. 

447.  Conflict  of  authority  as  to  state  jurisdiction. 

448.  Act  of  congress  not  authoritative  so  as  to  require  state  courts  to 

act. 
•449.  Record  of  naturalization  conclusive. 

450.  Naturalization  not  retroactive. 

451.  Singular  law  and  singular  execution  of  it. 

452.  Naturalization  as  to  infants. 

§  444.  The  constitution  of  the  United  States  has  devolved 
on  congress  the  duty  of  providing  for  the  naturalization  of 
aliens,  by  which  are  conferred  upon  them  the  privileges  of 
citizenship  in  all  particulars,  except  eligibility  to  the  presi- 
dency. Accordingly,  laws  have  been  enacted  for  the  purpose, 
and  adjudications  had  under  these  laws.  It  is  only  the  lat- 
ter that  I  j)urpose  to  notice,  and  these  only  so  far  as  they 
relate  to  jurisdictional  matters,  which  alone  properly  fall 
within  the  compass  of  the  present  work, 

§  445.  That  the  naturalization  of  aliens  is  a  judicial  act  is 
universally  conceded,  so  far  as  I  know,  (a)  and  consequently  it 
cannot  be  delegated  to  a  clerk,  but  must  be  exercised  by  the 
court  itself, (/^)  except  as  to  the  preliminary  application  and 
oath  of  an  alien,  which  are  regarded  merely  ministerial. (c) 

§  446.  As  to  the  kind  of  court  which  is  competent  to  take 
jurisdiction,  it  has  been  held  that  under  the  act  of  congress  of 
1802  a  court  of  record,  not  having  a  clerk  or  prothonotary 
distinct  from  the  judge,  is  not  competent  even  to  receive  an 

(a)Spratt  v.  Spratt,  14  Pet.  (U.  S.)  (J)(;iuri<'s  Case,  44  Harl).  444. 

40ti;  Morgan  V.  Dudley,  18  B.  Mon.  (^:)I5uitcr\v()rlh's  Case,  W.  &  M. 

714,  (U.  S.)  323. 


448  NATURALIZATION. 

tilien's  preliminary  declaratiou  of  intention,  (c?)  and  the  reason 
is  stated  to  be  that  "it  is  generally  true  that  a  court  of  record, 
which  is  without  a  clerk  or  prothonotary,  is  not  only  a  subor^ 
dinate  tribunal,  but  one  to  which  a  very  narrow  and  compar- 
atively unimportant  jurisdiction  is  entrusted."  In  Illinois, 
prior  to  the  constitution  of  1S70,  it  was  held  that  the  county 
courts  had  no  jurisdiction  in  naturalization,  and  this  reason 
for  it  was  given :  "It  was  said  in  Mills  v.  McDade,  44  IlL 
194,  '  that  a  fair  and  reasonable  construction  of  the  act  of  con- 
gress requires  us  to  hold  that  only  a  court  of  record  for  gen- 
eral, and  not  for  special,  purposes  was  intended  to  be  em- 
braced. That  act  has  not  declared  that  a  court  of  record,  for 
some  purposes,  shall  be  vested  with  such  jurisdiction."  So, 
for  the  same  reason,  we  must  hold  that  where,  although  a 
court  of  record,  if  it  only  has  common-law  jurisdiction  in 
three  common-law  actions,  and  two  of  them  limited  in 
amount,  it  is  not  such  a  court  as  was  contemplated  by  the  act 
of  congress.  Where  it  declared  that  it  must  have  common- 
law  jurisdiction,  it  cannot  be  that  it  was  designed  to  confer 
the  power  on  a  court,  having  a  seal  and  clerk,  which  could 
only  exercise  the  smallest  fragment  of  common-law  jurisdic- 
tion. The  court  intended  to  be  embraced  was  one  that  exer- 
cised a  general  jurisdiction,  although  it  might  be  a  common- 
law  jurisdiction,  limited  as  to  the  sum  or  amount  in  contro- 
versy; and  it  may  be  where  some  kinds  of  action  are  ex- 
cluded, "(e) 

§  447.  There  is  an  evident  conflict  of  authorities  upon 
the  question  as  to  the  source  of  the  jurisdiction  exercised  by 
the  state  courts  in  naturalization — some  holding  that  it  is 
conferred  by  act  of  congress,  others  that  it  is  not,  because 
congress  cannot  give  jurisdiction  to  state  courts.  The  mid- 
dle ground  on  which  the  extremes  meet  and  are  reconciled  is 
this :  That  prior  to  the  adoption  of  the  national  constitution 
the  states  had  the  power  of  naturalization ;  that  this  power 
was  superseded  and  held  in  abeyance  by  the  constitution  and 

((7)Gregg's    Case,   2   Curtiss,  9S.      251 ;  State  <?u!  re^.  ».  Webster,  7  Neb. 
See  State  v.  Wliittemore,  50  N.  H.      469. 

(t')Knox  County  ».  Davis,  63  III.  421. 


NATURALIZATION.  449 

nets  of  congress,  but  that  congress  can,  by  virtue  of  this  old 
power,  employ  the  state  courts  to  execute  its  acts,(/)  which, 
altogether,  resembles  more  a  metaphysical  refinement  than 
anything  else.  The  New  York  courts  hold,  however,  that  in 
the  matter  of  naturalization  the  state  courts  act  as  agents  of 
the  government,  and  are,^ro  hac  vice,  tribunals  of  the  United 
States  ;(^)  and  it  is  stated  to  be  on  this  wise  in  regard  to 
state-enabling  statutes,  which  it  is  held  cannot  be  competent 
to  confer  a  power  to  naturalize :  "The  power  of  legislation 
upon  this  subject  existed  in  the  states  prior  to  the  constitu- 
tion. The  legislation  would  have  been  executed  in  the  ordi- 
nary tribunals  of  justice.  The  power  has  been  superseded  by 
an  act  of  congress,  passed  under  the  constitution.  Congress 
adopted  the  state  tribunals  as  the  agents  to  exercise  the  power 
as  they  would  have  performed  it  before.  The  concurrence  of 
the  state  legislatures  expressed,  or  fairly  implied,  adds  the 
sanction  of  the  state  to  this  delegation  of  power.  Whether 
such  tribunals  are  bound  to  act  may  admit  of  controversy. 
That  these  acts  are  lawful,  if  they  do  so,  seems  unde- 
niable, "(/t) 

California  seems  to  have  gone  far  beyond  any  other  state 
in  denying  that  in  any  sense  state  courts  are  agents  of  con- 
gress. It  holds  that  the  constitution  has  given  to  congress 
nothing  but  the  power  to  establish  a  uniform  rule  for  the 
guidance  of  the  states  in  the  exercise  of  their  original 
power  to  naturalize;  that  this  original  power  never  was 
surrendered  nor  superseded;  that  the  authority  of  congress 
to  lay  down  a  rule  of  uniformity  is  conferred  by  the  con- 
stitution, from  the  necessity  of  the  ease,  under  the  requi- 
sition that  "the  citizens  of  each  state  shall  be  entitled  to  all 
privileges  and  immunities  in  the  several  states;"  and  that 
the  rule  is  binding,  if  a  state  undertakes  to  naturalize  at  all 
from  its  inherent  authority.  As  to  this  necessity  the  (!ourt 
say :   "It  might  well  have  been  apprehended  that  in  the  feeble 

(/)State  V.  Fenucy,  5  Eng.  62'.».  case  the  acts  of  con.t^rt-sa  am  e\-- 

{g)People  v.   Sweetman,   3   Park  plaitunl  at  Icngtli. 

Crim.  371;  Christern's  Case,  43  N.  (/ijUamsdea's  Case,  13  How.  Pr. 

Y.  Superior  Ct.  523.     In  this  latter  4.35. 
T,l— 2d 


i50  NATURALIZATION. 

and  sparsely  populated  condition  of  the  states  a  race  would 
have  been  run  for  the  acquisition  of  population,  differing  in 
its  radicalism  only  according  to  the  difference  of  opinion  as 
to  the  danger  of  the  sudden  introduction  of  too  large  a  for- 
eign element;  and,  as  when  once  admitted  to  citizenship  in 
one  state,  the  alien  would  have  all  privileges  in  the  other 
states,  it  would  he  in  effect  allowing  one  state  to  modify  or 
break  down  the  policy  of  another.  This  is  made  apparent 
by  the  discussions  which  then  took  place  upon  the  subject. 
Hence  the  necessity  arose,  not  that  congress  should  have  power 
to  naturalize,  but  that  it  should  have  power  to  prescribe  to 
the  states  a  rule,  to  be  carried  out  by  them,  and  which  should 
be  uniform  in  each.  If  this  were  not  so  it  follows  conclu- 
sively that  there  is  no  mode  by  which  a  foreigner  can  be 
made  expressly  a  citizen  of  a  state;  for  I  have  already  shown 
that  there  is  no  such  thing,  technically,  as  a  citizen  of  the 
United  States;  consequently  one  who  is  created  a  citizen  of 
the  United  States  is  certainly  not  made  a  citizen  of  any  par- 
ticular state.  It  follows  that,  as  it  is  only  the  citizens  of  the 
state  who  are  entitled  to  the  privileges  and  immunities  of  the 
several  states,  if  the  process  is  left  alone  to  the  action  of 
congress,  through  the  federal  tribunals,  and  in  the  form  which 
they  have  accepted,  then  a  distinction,  both  in  name  and 
privileges,  is  made  to  exist  between  the  citizens  of  the  United 
States,  ex  vl  termini,  and  citizens  of  the  respective  states.  To 
the  former  no  privileges  or  immunities  are  granted,  and  it 
will  hardl}'  be  j)retended  that  political  status  can  be  derived 
by  implication  against  exj^ress  legal  enactments.  I  cannot 
concede  that  such  a  result  was  ever  contemplated,  and  yet  it 
would  be  inevitable  upon  any  other  hypothesis  than  that  the 
*  uniform  rale,'  declared  hy  the  constitution,  was  intended  to 
be  prescribed  for  the  action  of  the  states,  and  that  by  this 
rule  they  were  left  to  exercise,  or  not,  their  original  power  of 
naturalization,  "(i)  Again,  it  says:  "Congress  having  power, 
under  the  constitution,  to  make  the  rule,  certainly  had  the 
right  to  make  the  exercise  of  it  a  judicial  power,  and  fix  upon 
the  class  of  courts  which  might  be  invested  with  the  jurisdic- 
(i)Knowles'  Case,  5  Cal.  304. 


NATURALIZATION.  451 

tion.     This  it  could  do  as  a  part  of  the  rule,  although  it 
might  not  directly  confer  the  jurisdiction." 

§  448.  It  is  universally  agreed,  I  believe,  that  the  act  of 
congress  cannot  be  made  authoritative,  so  as  to  require  the 
state  courts  to  exercise  the  power  to  naturalize.  Shaic,  J., 
in  a  very  able  opinion,  says  of  this  whole  matter:  "We  sup- 
pose it  to  be  a  position  incontested.  that,  by  the  constitution 
of  the  United  States,  power  is  invested  exclusively  in  the  gen- 
eral government  to  grant  letters  of  naturalization  to  foreign- 
ers, and  that  a  similar  power,  formerly  exercised  by  the 
respective  state  governments,  has  been  superseded.  Chirac 
V.  Chirac,  2  Wheat.  269.  If  the  state  government,  its  courts 
or  magistrates,  have  any  authority  on  the  subject,  it  must  be 
derived  from  the  general  government.  The  theory  of  the 
general  government  is  that  a  few  great  and  leading  subjects 
of  control  and  administration,  belonging  to,  and  inherent  in, 
all  sovereign  states,  and  which  are  of  common  interest  to  all 
the  states,  are  singled  out  and  placed  in  the  exclusive  juris- 
diction of  the  general  government;  and  this  government, 
unlike  the  confederation  of  states,  which  acted  mainly  through 
the  state  governments,  is  constituted,  with  its  legislative,  judi- 
cial, and  executive  departments,  to  act  directly  upon  the  peo- 
ple, without  the  intervention  of  the  state  governments,  and  is 
organized  in  such  manner  as  to  make,  administer,  and  execute 
all  laws  necessary  or  incidental  to  the  full  and  complete  exer- 
cise of  the  sovereign  power  upon  the  subjects  placed  within  its 
administration.  The  general  government  has,  therefore,  full 
authority  to  appoint  and  commission  all  courts,  magistrates, 
and  officers  to  carry  the  laws  of  congress  into  effect,  without 
necessary  reliance  on  those  of  the  states.  But  we  think  that 
in  the  earlier  stages  of  the  general  government,  before  the  line 
which  defines  the  distinction  between  the  jurisdiction  of  the 
United  States  and  that  of  the  several  states  had  become  as  dis- 
tinctly marked  as  it  has  since  been,  it  was  not  unusual  for  con- 
gress, as  a  matter  of  convenience,  perhaps,  not  regarding  this 
distinction  very  strictly,  to  vest  certain  powers  in  the  courts 
and  magistrates  of  the  several  states  not  of  tlieir  own  consti- 
tution   and  appointment.     We  believe  that  justices  of   the 


452  NATURALIZATION. 

peace  of  the  states  were  authorized  to  issue  warrants  and  to 
arrest  deserting  seamen,  and  in  many  other  cases  state  courts 
and  magistrates  had  powers  conferred  by  act  of  congress. 
But  we  are  of  opinion  that  the  powers  which  the  legislature, 
by  the  statute  in  question,  has  prohibited  the  courts  and 
magistrates  of  the  state  from  exercising,  do  not  extend  to  any 
cases  where  duties  are  required  by  the  constitution  of  the 
United  States,  or  by  smj  laws  of  congress  made  pursuant  to 
the  constitution.  The  power  of  naturalization,  being  vested 
exclusively  in  the  government  of  the  United  States,  congress 
has  very  properly  provided  for  its  exercise  by  the  courts  of  the 
United  States ;  and  the  superadded  power,  by  the  act  giving 
the  same  jurisdiction  to  the  courts  of  the  states,  is  not  neces- 
sary to  the  just  rights  of  those  entitled  by  law  to  the  privi- 
lege of  becoming  citizens.  These  powers  given  to  state  courts 
are,  therefore,  naked  powers,  which  impose  no  legal  obliga- 
tion on  courts  to  assume  and  exercise  them.  And  such  exer- 
cise is  not  within  their  official  duty,  or  their  oath  to  support 
the  constitution  of  the  United  States. 

"But,  whatever  may  be  the  authority  of  congress  to  require 
the  performance  of  duties  by  state  courts,  magistrates,  and 
officers,  not  affecting  the  organization  of  the  national  govern- 
ment, or  not  expressly  provided  for  by  the  constitution,  (re- 
specting which  there  may  be  some  doubt,)  it  is  well  estab- 
lished that  such  courts  and  magistrates  may,  if  they  choose, 
exercise  the  powers  thus  conferred  by  congress,  unless  pro- 
hibited by  state  legislation,  Prigg  v.  Penusylvania,  16  Pet. 
622.  The  decision  of  this  principle  accounts  for  the  fact  that 
this  jurisdiction  on  the  subject  of  naturalization  was  so  long 
exercised  by  the  courts  of  the  commonwealth,  and  that  such 
jurisdiction  was  strictly  legal.  But,  according  to  our  view  of 
the  constitution  of  the  United  States,  and  the  laws  of  con- 
gress made  pursuant  to  it,  expounded  in  reference  to  the 
powers  reserved  to  the  states  since  the  government  of  this 
commonwealth  has  declared  that  the  courts  and  magistrates 
appointed  by  it  shall  not  exercise  jurisdiction  over  the  subject 
of  naturalization,  it  is  not  competent  for  this  court  to  grant 
the  present  petition. 


NATUKALIZATION.  453 

"We  must  carefully  distinguish  this  from  a  class  of  cases 
where,  under  the  authority  vested  in  the  general  government, 
and  by  laws  passed  by  congress,  within  the  scope  of  their  au- 
thority, duties  are  imposed  on  the  state  government,  or  on 
the  governor,  judges,  magistrates,  or  officers  of  the  state. 
These,  by  force  of  the  constitution  of  the  United  States,  be- 
came the  supreme  law  of  the  laud,  and  therefore  cannot  be 
affected  by  any  state  legislation.  On  the  contrary,  all  state 
officers,  being  sworn  to  support  the  constitution  of  the  United 
States,  would  be  bound  to  act  in  conformity  with  the  laws  of 
the  United  States,  thus  rightly  made,  if  unhappily  any  con- 
flict should  arise  between  the  laws  of  the  United  States  and 
those  of  the  commonwealth,  "(j) 

§  449.  The  record  of  naturalization  is  held  to  import  abso- 
lute verity,  and  therefore  not  to  be  disputable.  The  leading 
case  is  one  in  the  supreme  court  of  the  United  States,  wherein 
Chief  Justice  Marshall  said:  "The  various  acts  upon  the 
subject  submit  the  decision  on  the  right  of  aliens  to  admis- 
sion as  citizens  to  courts  of  record.  They  are  to  receive  tes 
timony,  compare  it  with  the  law,  and  judge  on  both  law  and 
fact.  This  judgment  is  entered  on  record  as  the  judgment  of 
the  court.  It  seems  to  us,  if  it  be  in  legal  form,  to  close  all 
inquiry,  and,  like  every  other  judgment,  to  be  complete  evi- 
dence of  its  own  validity ."  (A,)  And  where  a  case  was  brought 
before  the  district  court  for  the  eastern  district  of  Michigan, 
to  impeach  a  naturalization  proceeding,  tlie  court  held  that 
no  such  inquiry  could  be  made  collaterally,  and  that  in  any 
event  the  naturalization  judgment,  like  any  other  judg- 
ment, could  only  be  impeached  by  fraud  or  collusion,  which 
was  not  before  the  court  or  involved  in  the  issue  whereon  the 
judgment  was  rendered,  and  couhl  not  be  impeached  for 
any  facts,  even  if  involving  fraud,  or  colhision,  or  perjury, 
which  were  of  necessity  j)assed  on  by  the  court ;(/)  for  "this 
is  contrary  to  all  precedent,  and  all  authority,"  say  the  court. 
"To  allow  it  would  tend  tc  unsettle  the  sanctity  of  the  final 

(,;)Stevens'  Case,  4  Gray,  561.  K  Y.  2G:^,  and  Stale  v.  Hoctlin;,'!.'!-, 

(/j)Spratt    V.   Spratt,  4   Pet.   .393;      35  Wi.s.  IVM.) 
(followed  by  McCarthy  v.  Marsh,  5  (/)The  Acorn,  2  Abb.  (U.  S.)  444. 


454  NATURALIZATION. 

adjudication  of  judicial  tribunals,  and  render  them  of  no 
more  binding  or  conclusive  effect  than  a  simple  contract." 

§  450.  It  has  been  held  that  a  judgment  of  naturalization 
cannot  retroact  so  as  to  revert  back  to  the  filing  of  the  decla- 
ration of  intention,  and  thus  save  titles  lost  meanwhile  in 
states  -which  hold  to  the  common-law  disability  of  aliens  to 
inherit  lands.  The  court  of  Kentucky  say  of  this :  "What- 
ever may  be  the  political  eifect  of  a  declaration  of  intention 
to  become  a  citizen  of  the  United  States,  and  whatever  may 
be  the  extent  to  which  an  alien  will  thereby  become  entitled 
to  the  protection  of  the  federal  government,  we  think  it  is  very 
obvious  that,  as  to  many  civil  rights,  he  still  remains  under 
the  disability  of  alienage.  He  is,  except  so  far  as  personal 
protection  is  concerned,  still  an  ahen,  and  is  so  regarded  bj-- 
the  acts  of  congress  until,  in  pursuance  of  the  rule  they  pre- 
scribe, he  has  been  made  a  naturalized  citizen.  By  making 
a  declaration  of  his  intention  he  only  takes  a  preliminary  step 
to  the  attainment  of  the  object  he  has  in  view,  for  the  full 
accomplishment  of  which  he  is  compelled  to  wait  the  pre- 
scribed time.  He  does  not  therebj'  remove  the  disability 
which  he  labors  under  as  an  alien,  to  take  lands  by  inherit- 
ance, nor  is  such  disability  removed  in  this  state  until  he  has 
resided  therein  for  a  period  of  two  years,  or  has  become  a 
naturalized  citizen  under  the  acts  of  congress."(m) 

And  thus,  where  a  widow  was  naturalized  after  the  death 
of  lier  husband,  who  had  been  naturalized  some  time  before 
his  death,  it  was  held  not  to  revert  back  and  take  the  portion 
of  his  real  estate  to  which  she  would  have  been  entitled  had 
she  not  continued  an  alien  until  the  husband  died(«.)  But 
it  is  different  as  to  a  devise,  the  principle  being,  by  common 
law,  that  an  alien  can  take  lands  by  purchase — that  is,  by  the 
act  of  the  part}';  but  not  by  descent — that  is,  by  act  of  law(o.) 

§  451.  In  1S13  congress  passed  a  very  singular  law,  pro- 
viding "that  no  person  who  shall  arrive  in  the  United  States, 
from  and  after  the  time  when  this  act  shall  take  effect,  shall 

(,'«)Wlute  ».  White,  1  Met.  IBS.  (o)Fairfax's  Devisee  v.  Lessee,  7 

(«)Kocnau».  Keenau,  7  liicli.  (S.      Crancli,  619. 
C.)  350. 


NATURALIZATION.  455 

be  admittecT  to  become  a  citizen  of  the  United  States,  who 
shall  not,  for  the  continued  term  of  five  years  next  preceding 
his  admission  as  aforesaid,  have  resided  within  the  United 
States,  without  being  at  any  time  during  the  said  live  years 
out  of  the  territorj^  of  the  United  States."  And  a  supreme 
court  drew  the  lines  on  this  so  rigidly  as  to  exclude  one  from 
naturalization  who  had  gone  from  Eochester  to  Ogdensburgh 
during  the  five  years,  by  lake,  on  a  vessel  which  stopped  ten 
minutes  at  Kingston,  Canada,  to  take  on  passengers,  and  who 
there  stejDped  on  the  dock  or  wharf  for  two  or  three  minutes, 
and  then  returned  on  board!  That  is  a  specimen  of  "strict 
construction,"  without  doubt,  which  illustrated  the  delicate 
conscientiousness  of  the  court  with  remarkable  clearness,  (p) 

§  452.  On  the  authority  of  West  v.  West,  8  Paige,  664,  the 
Florida  court  holds  that,  "under  the  naturalization  act  of  con- 
gress of  1S02,  infants,  though  born  out  of  the  United  States, 
if  dwelling  within  the  United  States  at  the  time  of  the  nat- 
uralization of  their  parents,  become  citizens  by  such  natural- 
ization, and  the  provisions  of  that  act  on  this  subject  are 
prospective,  so  as  to  embrace  the  children  of  aUens  natural- 
ized after  the  passage  of  the  act,  as  well  as  the  children  of 
those  who  were  naturalized  before,  "(g) 

(p)Paul's  Case,  7  Hill,  57.  (g)O'CoDnor  v.  State,  9  Flor.  234. 


450  QUO    WARRANTO, 


CHAPTER  XIV. 

QUO   WARRASTO. 

4  453.  Ancient  writ  disused. 

454.  Nature  of  the  action. 

455.  Nature  of  tlie  jurisdiction. 

456.  Prosecution  in  tlie  name  of  the  peopie. 

457.  Legislative  amendment  pending  proceedings. 

458.  Original  jurisdiction  of  a  supreme  court. 

459.  Common-law  rules. 

4C0.  How  jurisdiction  acquired  in  a  particular  case. 

461.  Change  of  venue  of  case  transmitted  by  a  supreme  court  to  a  par- 

ticular circuit  coui  t. 

462.  Consent  cannot  give  jurisdiction. 

463.  Who  may  be  a  relator. 

464.  What  tlie  proceeding  embraces. 

465.  State  not  bound  to  show  demand — prosecution  not  substituted  for 

impeachments — constitutionality  of  a  law — nugatory  writs — for- 
feiture— discretion — private  appointments — title  to  past  office. 

466.  Legal  organization  of  a  town — right  of  a  school  district — military 

office — rule  as  to  appointments — answer  to  be  made  to  the  sov- 
ereignty— escheats — private  franchises. 

467.  Writ  not  confined  to  the  subjects  of  the  ancient  writ. 

468.  Membership  in  a  city  council. 
409.  Contested  elections. 

470.  Organization  of  new  counties. 

471.  Exercise  of  an  office  while  proceedings  are  pending. 

§  453.  The  ancient  writ  of  quo  warranto  has,  I  believe, 
wholly  fallen  into  disuse,  the  proceedings  under  it  having  been 
of  the  most  cumbrous  and  tedious  character.  Substituted  in 
its  place  is  an  information  in  the  nature  of  a  quo  warranto, 
which,  while  it  answers  every  pui'i^ose,  is  as  expeditious  as 
almost  any  other  action.  However,  to  avoid  circuity  of  ex- 
jsression,  these  modern  proceedings  are  usually  styled  simply 
quo  warranto — a  custom  I  shall  follow  in  the  present  chapter. 

§  454.  Originally,  the  action  was  regarded  as  of  a  criminal 
nature,  instituted  by  the  attorney  general,  in  behalf  of  the 


QUO    WARRANTO.  457 

state,  to  inquire  into  and  punish  a  party  intruding  into  an 
office  to  which  he  was  not  entitled.  But  it  is  now  regarded 
as  a  civil  proceeding,  essentially,  although  having  the  same 
purpose  in  view — so  far,  at  least,  as  to- inquire  concerning  the 
title  to  office; (a)  and,  also,  the  hurden  of  proof,  according  to 
the  general  principles  of  evidence,  is  on  the  relator,  since  all 
presumptions  are  in  favor  of  the  incumbent  in  regard  to  the 
tenure  by  which  he  holds  his  office. (/;)  And,  accordingly,  it 
has  been  held  that  a  statute  conferring  on  courts  a  discretion- 
ary power  in  regard  to  criminal  proceedings  does  not  embrace 
quo  warranto,  that  not  being  criminal. (c) 

It  is  a  proceeding  at  law,  however,  and  the  facts  therein 
are  triable  by  jury,  as  in  other  legal  proceedings,  so  that  "con- 
viction of  misdemeanor  is  entirely  unnecessary,  and  not  essen- 
tial to  give  jurisdiction  to  the  court"  in  declaring  a  forfeiture 
of  the  office  by  a  councillor.  (<^) 

§  455.  It  is  held  that  a  constitutional  grant  of  power  to 
issue  writs  of  quo  icarranto  necessarily  embraces  the  proceed- 
ing by  information,  in  the  nature  of  a  quo  icarranto,  this  pro- 
ceeding being  civil  in  its  essential  incidents,  and  having  the 
same  object  in  view ;  and,  moreover,  that  such  a  grant  can 
be  exercised  by  a  court  without  legislative  direction  as  to  the 
manner  thereof,  so  that  in  the  absence  of  legislation  the 
court  will  simply  proceed  according  to  the  course  of  the  com- 
mon law.((')  And,  even  where  an  executive  office  is  involved, 
the  right  to  the  office  does  not  fall  under  the  power  of  im- 

(rt)Statt'  e.t    rcl.   v.    Luwrence,   'i^  anthoii/ed  williin  a  /Kcrlicular  dis- 

Mo.  535.     Thus,  where  a  failure  to  trie/  or   not,   (State   «.    I'arker,   25 

qualify  works  a  forfeiture  ol  an  ol-  JNIimi.    215.)     But   courts   will   not 

fice  of  an  unlawful  incumbent,  quo  inquire  into  the  right  of  a  legislator 

warranto  is  the  pioper  mode  of  pro-  to  his  seat ;  for  this  helongs  to  the 

cedure  to  oust  the  incumbent  who  legislative  body  itself.     isUite  ex  rel. 

holds  without  l)eing  qualified.  Hyde  20  Kan.  702. 

V.  State  ex  rel.  52  :\Iiss.  665.     The  (h)':^U\U^  ex  rel.  v.  Kii|)IVilc,  44  l\lo. 

forfeiture  can  only  be  properly  de-  157. 

clared  judicially.    The  inquiry  may  (r')Ensminger  v.    People,   47    111. 

relate  to  an  oflice  held  l)y  appoint-  385, 

ment  as  well  as  to  one  held  l)y  elec-  (f/)('ommoii\v.  «.  Allen,  70  Pa.  St. 

tion,  (State  v.   Minton,  49  la.  591,)  472. 

and  also  as  to  whether  the  office  is  (r)Stale  v.  Uleason,  12  Fb)r.  199. 


458 


QUO    WARRANTO. 


peachment  by  the  legislature,  this  being  judicial  in  its  char- 
acter, and  not  political,  and  being  therefore  a  matter  solely 
within  judicial  cognizance  by  the  ordinary  courts. (/) 

§  456.  Notwithstanding  the  civil  nature  of  quo  warranto, 
the  prosecution  runs  in  the  name  of  the  people,  even  where 
it  is  directed  against  the  franchises  of  a  railroad  corpora- 
tion, ((/)  or  is  an  inquiry  into  the  usurpation  of  ferry  fran- 
chises, (/<)  or  into  the  usurpation  of  a  mayor's  office. (i)  And 
so  the  attorney  general  is,  in  general,  the  proper  officer  to  in- 
stitute proceedings  to  inquire  into  the  title  to  a  public  office, 
this  being  a  power  properly  incident  to  his  office,  so  that  on 
his  demand  the  writ  will  issue,  when  information  is  filed,  as 
in  ordinary  actions  of  debt  by  the  state  against  its  debtors, 
and  in  such  case  neither  his  motives,  nor  the  motives  of  any 
one  alleged  io  have  influenced  his  action,  can  be  inquired  of. 


(/)lbid. 

{f/)People  «.  K.  R.  13  11].  67.  It 
must  be  carefully  borne  in  mind 
that  courts  will  always  proceed  with 
extreme  caution  in  proceeding  to 
annul  a  corporate  franchise,  and 
will  not  dissolve  a  corporation  ex- 
cept upon  a  gross  perversion  or 
abuse  of  power,  by  which  the  cor- 
poration fails  to  fulfil  the  purpose 
of  its  organization.  Anj^  act  of 
mis-user  or  non-user  must  be  of  the 
essence  of  the  contract  between  the 
sovereign  and  the  corporation,  and 
be  wilful  and  repeated.  Harris, 
Att'y  Gen.,  v.  R.  K.  51  Miss.  «02. 
Merelj'^  neglecting  to  exercise  the 
corporate  powers  is  not  sufficient  to 
authorize  a  dissolution,  (Baptist 
House  V.  Webb,  66  Me.  398,)  al- 
though assuming  franchises  not 
granted  will  more  readil}^  be  inter- 
fered with,  (State  ex  rel.  v.  Relief 
Association,  29  Ohio  ISt.  39h ;)  as 
also  failure  to  locate  its  business  so 
as  to  afford  access  to  the  process 
and  visitorial  power  of  the  state 
which  creates  it,  (State  ex  rel.  v  R. 


R.  45  Wis.  580.)  The  matter  of 
forfeiture  must  always  be  deter- 
mined in  a  direct  proceeding,  and  it 
will  not  be  considered  collaterally. 
Mackall  v.  Canal  Co.  94  U.  S.  308. 
And  so,  in  an  action  by  a  corpora- 
tion, the  defendant  cannot  be  al- 
lowed to  answer  that  the  corpora- 
tion had  forfeited  its  charter  hy 
■non-user,  without  an  averment  also 
that  such  forfeiture  has  been  judi- 
cially declared,  (West  v.  Insurance- 
Co.  31  Ark.  477;)  although  a  fran- 
chise— such  as  taking  tolls,  or  the 
like,  which  is  distinct  from  the  cor- 
porate franchise,  and  came  into  ex- 
istence by  grant  of  a  local  board, 
and  not  of  the  state — may  be  ques- 
tioned as  a  mere  defence.  Grand 
Rapids  Bridge  Co.  v.  Prange,  35 
Mich.  40.5.  This  does  not  involve 
the  question  of  forfeiture — which 
forfeiture  l)elongs  to  the  state  to 
enforce  by  a  direct  proceeding. 
New  Jersey,  etc.,  R.  Co.  v.  Comr's, 
3!)  N.  J.  28. 

(/;)Wright  V.  People,  15  111.  417. 

(i)IIay  V.  People,  59  111.  94. 


QUO    WARRANTO.  459 

nor  is  it  necessary  to  the  jurisdiction  and  action  of  a  court 
that  there  should  be  a  contestant  for  the  office  held,  since  the 
matter  may  proceed  upon  the  motion  of  the  attorney  general 
alone  ■,(j)  and,  moreover,  a  writ  may  be  issued,  in  term  time, 
usually,  and  made  returnable  at  the  same  time,  on  account 
of  the  necessity  of  prompt  action  in  such  matters;  the  effi- 
cacy of  the  remedy  often  depending  upon  a  speedy  admin- 
istration, since  a  term  of  office  niight  expire  before  the  liti- 
gation could  be  terminated,  if  it  were  governed  by  ordinary 
rules  of  procedure.  Moreover,  in  the  exercise  of  its  dis- 
cretion, a  court  will  not,  in  general,  give  leave  to  file  an  in- 
formation where  the  term  would  inevitably  expire  before  the 
controversy  could  be  decided. (^•) 

Notwithstanding,  as  I  have  stated,  this  matter  is  not  polit- 
ical, but  judicial,  and  so  is  distinct  from  impeachment  pro- 
ceedings, yet  there  are  cases  where  the  legislature  may  direct 
proceedings,  as  where  a  prosecution  is  in  the  nature  of  an 
inquest  of  office,  whereby  the  state  claims  to  be  re-seized  of 
lands  before  granted.  An  information  for  dissolving  a  cor- 
poration may  be  filed  under  special  direction  of  the  legisla- 
ture, or  ex  officio  by  the  attorney  general.  But,  in  cases  of 
usurpation  of  public  offices  by  individuals,  the  attorney  gen- 
eral may  act  at  the  relation  of  proper  persons,  or  else  ex  officio, 
by  virtue  of  the  general  powers  of  his  office,  without  any  inter- 
position of  the  legislature.  Yet,  while  it  is  held  that  a  senate 
should  not  direct  in  any  matter  wherein  the  conduct  of  an 
officer  may  come  before  it,  in  the  way  of  impeachment  pro- 
ceedings, the  house  of  representatives,  being  regarded  as  the 
constitutional  grand  inquest  of  the  state,  and  the  natural  and 
appointed  guardian  of  the  public  morals  and  of  public  offi- 
cers, may  direct  or  request,  even  where  such  direction  is  not 
necessary  to  the  validity  of  the  action.  And  where  an  attor- 
ney general  recites  such  a  request,  in  a  case  wherein  he  has 
full  power  to  proceed  ex  officio,  it  will  be  held  that,  while  the 
request  may  have  operated  as  an  inducement  to  him  to 
exercise  the  functions  of  his  office  therein,  he  does  the  act  of 

(j)Stateo.  Gleason,  12  Flor.  I9y.  (/.;)Linclsoy   v.  Attorney   Gencriil, 

33  Miss.  517. 


460  QUO    WARRANTO. 

himself,  by  virtue  of  his  inherent  ofl&cial  authority,  on  the  prin- 
ciple that  had  he  done  the  act  on  the  relation  of  an  individ- 
ual, and  had  seen  fit  to  recite  his  motive  in  the  information, 
the  proceedings  would  not  be  thereby  vitiated. (Z) 

§  457.  It  has  been  held  that  an  amendatory  act,  relating  to 
a  charter,  may  be  passed  while  quo  ivarranto  proceedings  are 
in  progress,  and  take  effect  upon  the  pending  case.  Thus,  in 
Pennsylvania,  where  an  act  provided  that  no  one  should  be 
eligible  to  the  city  council  of  Philadelphia  who,  when  elected, 
held  office  or  employment  under  the  state,  and  a  quo  warranto 
was  brought  at  the  instance  of  private  relators  to  oust  one  who, 
when  elected,  was  a  notary  public,  and  during  the  pendency 
of  tiie  proceedings  the  legislature  passed  an  act  declaring 
that  it  was  not  the  intention  or  meaning  of  the  prior  act  to 
prohibit  a  member  of  council  from  acting  as  a  notary  public, 
and  enacting  that  no  member  of  the  present  councils  should 
be  disqualified  or  removed  from  the  councils  because  of  his 
being  a  notary  public,  the  judgment  of  ouster  was  reversed; 
and  the  supreme  court  said  :  "In  this  [entering  the  judgment] 
we  think  the  learned  judge  was  clearly  in  error,  for  the  act  of 
twenty -ninth  January,  1873,  was  a  perfectly  constitutional 
law,  and  if  the  attorne}'^  general  had  been  the  relator  he  would 
have  discontinued  the  suit  as  soon  as  the  act  was  brought  to 
his  notice,  as  would  have  been  his  duty.  The  act  deals  sim- 
pl}'  with  a  part  of  the  chartei'  of  a  municipal  corporation,  over 
which  the  legislature  had  entire  control,  and  did  not  inter- 
fere with  any  vested  right  of  any  individual,  and  certainly 
not  of  the  two  relators.  It  was  a  matter  concerning  the  pub- 
lic, and  was  strictly  within  the  province  of  the  legislature, 
and  was  not  an  interference  with  the  proper  functions  of  the 
court,  and  did  not  'override  the  judiciary.'  "(m) 

§  458.  A  sujireme  court,  though  having  usually  only  appel- 
late jurisdiction,  may  have  original  jurisdiction  in  quo  u-arranto 
proceedings  by  statute. («)  But  a  single  justice  will  not  grant, 
at  chambers,  a  judgment  of  ouster  on  account  of  a  frivolous 

(?)Commonw.  o.  Fowler,  10  Mass.  (/ft)Hawkins  v.  Commonw.  76  Pa. 

299.  St.  18. 

(») State  V.  II.  R.  25  Vt.  441. 


QUO    WARRANTO.  461 

answer,  especially  as  there  is  no  means  for  reviewing  such  a 
judgment  by  the  entire  court. (o)  It  is,  perhaps,  however, 
usual  for  a  supreme  court  to  decline  investigating  quo  warranto 
cases  where  other  tribunals  have  the  same  power,  subject  to 
appeal,  since  the  entertaining  of  jurisdiction  is  then  within 
the  discretion  of  the  supreme  court,  (p) 

§  459.  The  occasions  for  quo  warranto  are  determined  by 
the  rules  of  the  common  law,  by  which  rules  the  wa'it  is  an 
appropriate  method  for  trying  an}'-  alleged  usurpation  of  fran- 
chises, or  franchises  in  violation  of  the  state  sovereignty. (5) 
And  the  proceeding  must  be  in  the  name  of  the  sovereignty  so 
violated.  And  thus,  where  quo  warranto  was  brought  in  one  of 
the  territories  to  test  the  right  of  a  person  to  act  as  a  supreme 
judge  of  the  territory,  and  the  information  was  in  the  name 
of  the  territory  instead  of  the  United  States,  it  was  held  fatal 
error,  because  such  judges  are  appointed  by  the  president  and 
senate  of  the  United  States,  (r) 

§  460.  In  order  that  jurisdiction  should  be  acquired  over 
the  person  the  writ  must  be  served,  and  not  merely  notice  of 
the  intended  application  for  leave  to  tile  the  information;  nor 
is  it  sufficient  that  the  defendant  receive  an  informal  notice 
of  the  actual  pendency  of  the  suit,  unless  he  waives  process 
by  a  personal  appearance,  (s)  But,  in  case  of  non-resident 
officers  of  a  corporation,  a  notice  of  the  pendency  of  the  pro- 
ceedings may  be  provided  for  in  lieu  of  actual  service,  (^)  as  is 
the  case  with  non-residents  in  ordinary  legal  and  equitable 
actions. 

§  461.  Where  a  supreme  court  orders  the  issues  of  fact  to 
be  tried  in  any  specified  county,  it  is  improper  to  apply  to  the 
court  of  that  county  for  a  change  of  venue.     Tlie  application 

(o)Farrell«.  Coiiklin,33  Wis.  685.  claims  of  an    elector  of   president 

(j))State  «.  Vail,  53  Mo.  107.  and    vice    president,    bccaii.se    the 

(ryjState  v.  R.  K.  25  Vt.  441.    Thus,  office  is  one  under  the  United  Slates 

the  franchise  of  a  pilot  may  be  in-  constitution  and  laws.    State  e.x  rcl. 

quired  of  by  quo  warranto.     State  v.  Bowen,  8  S.  C.  400. 

«;  reZ.  ».  Jones,  10  Fla.  306.  (.y)IIarableton    «.    People,   44   111. 

(?')Territory».  Lockwood,3  Wall.  459. 

239.     And  so,  a  state  court  cannot  (OConunonw.  0.  Dillon,  01  i'a.  St. 

inquire    by   quo  warranto   into   the  489. 


4:62  QUO    WARRANTO. 

must  be  made  to  the  supreme  court  controlling  the  case.(w) 
Where  j)roceedings  are  instituted  in  a  circuit  court,  of  course 
the  application  is  to  that  court,  and,  if  the  affidavit  on 
which  the  application  is  based  contains  all  the  facts  requisite 
to  the  allowance  of  a  change  of  venue,  it  is  a  matter  of  right  in 
the  part}'  to  have  a  change,  and  not  of  discretion  in  the  court 
whether  he  shall  have  it  or  not.(r) 

§  462.  Consent  cannot  give  jurisdiction,  and  so,  where  par- 
ties agreed  to  try  the  title  to  an  office,  thus  expressly  waiving 
all  questions  of  form  and  of  jurisdiction,  and  the  suit  was  not 
instituted  in  the  name  of  the  government,  it  was  held  not 
maintainable,  whatever  might  be  the  right  of  the  prosecutor 
or  of  the  person  claiming  to  exercise  the  office  in  question.  («•) 

§  463.  As  to  who  may  be  a  relator,  it  must  be  one  who  has 
an  interest  in  the  subject  of  the  prosecution;  not,  for  example, 
in  the  matter  of  an  office,  a  non-resident,  or  a  non-voter. (r) 
Where  a  statute  allows  a  person  claiming  an  interest  in,  or 
adverse  to,  any  franchise  to  bring  an  action  of  qxio  icarranto  in 
his  own  name,  this  only  relates  to  matters  where  the  injury 
peculiarly  affects  him  alone,  for  if  it  affects  the  whole  com- 
munity alike  the  action  must  be  in  the  name  of  the  state ; 
so  that  private  persons,  having  no  interest  other  than  as  cit- 
izens or  tax-payers,  cannot  bring  an  action  in  their  own 
names  against  a  municipal  corporation,  to  try  the  validity  of 
its  existence  ;(^)  or  the  question  of  a  forfeiture  of  its  char- 
ter, in  which  case  it  is  held  in  Alabama  a  private  citizen 
cannot  even  be  a  relator  to  move  an  action  by  the  state  ;(-c^) 
and  in  Arkansas,  where  it  is  held,  in  connection  with  this,  that 
quo  warranto  was  not  designed,  originally,  to  determine  a  con- 
test between  two  parties,  concerning  an  office,  but  only  to 
require  an  incumbent  to  show  by  what  authority  he  was  at- 
tempting to  exercise,  or  actuallj''  exercising,  the  functions  of 
an  office  created  by  sovereign  power;  so  that  the  issue  was 

(M.)State  V.  Tounsley,  .56  Mo.  111.  (j)State  v.  Boal,  46  Mo.  .OSl. 

(«i)Ensminger   «.    People,    47  111.  (^)Miller  v.  Palermo,  12  Kan.  15  : 

387.  People  v.  K.  R.  88  111.  539  ;  Dema- 

(w) Wallace©.  Anderson,  5  Wheat,  rest  v.  Wickham,  63  N.  Y.  320. 

292.  (s)State  v.  Cahaba,  30  Ala.  67. 


QUO    WARRANTO,  463 

only  between  the  state  and  the  person  holding  the  office,  and 
properly  so  remains  at  present. (a)  In  Pennsylvania  it  has 
been  held  that  none  but  an  authorized  agent  of  the  state  can 
sue  out  a  writ  to  enforce  a  forfeiture  of  the  charter  of  a  pri- 
vate corporation, (6)  but  a  private  relator  may,  after  a  rule  to 
show  cause  only,  prosecute  a  quo  warranto  against  one  hold- 
ing the  office  of  mayor  in  a  municipal  corporation ;  however, 
the  rule  is  not  granted  as  a  matter  of  course,  but  is  subject 
to  the  discretion  of  the  court. (c) 

§  464.  Hence,  it  is  not  within  the  legitimate  province  of 
quo  ivarranto  proceedings  to  determine,  in  a  prosecution  by 
the  attorney  general,  the  right  of  a  claimant  to  an  office. 
In  such  an  adjudication,  however,  a  private  claimant  may  be 
allowed  to  institute  proceedings  at  his  relation,  as  in  quo  war- 
ranto,(d)  although  usually,  as  I  suppose,  and  much  more 
properly,  especial  legislative  regulations  are  provided  for  cases 
of  direct  contest  of  a  claim  to  office.  Where  the  quo  ivarranto 
mode  is  allowable,  the  relator  must  show  affirmatively  his 
own  title,  and  the  possession  of  requisite  qualifications. («') 
The  primary  and  fundamental  question,  in  all  cases  where  the 
proceeding  is  instituted  by  the  state,  is  whether  the  defendant 
is  legally  entitled  to  hold  the  office,  and  not  as  to  the  rights  of 
any  claimant,  although,  where  there  is  no  other  mode  provided 
of  contesting  an  election,  it  may  be  that  the  court  would  inci- 
dentally determine  the  contestant's  right  and  give  him  relief,  (/) 
but  otherwise  the  claim  of  the  relator  is  not  decided  except  so 
far  as  it  may  indirectly  affect  the  right  of  the  defendant. (<7) 

§  465.  We  will  consider  the  subject-matter  to  which  qno 
ivarranto  jurisdiction  attaches,  first;  negatively  premising 
that  the  state,  in  a  proceeding,  is  not  bound  to  show  a  pre- 
liminary demand  upon  an  incumbent  for  the  office,  nor  to 
establish  any  facts  except  such  as  are  tendered  by  the  plead- 
ings and  brought  into  issue. (//) 

(a)Kamsey  v.  Carliait,  27  Ark.  13.  (^)State  v.  Boal,  4t;  Mo.  531. 

(5)Commonw.  v.  Bank,   2  Grant,  (/)Stale  «.  Tonnsluy,  .0(5  INIo.  114. 

392.  (ry)State  v.  Vail,  53  Mo.  110. 

(<^)Commonw.  v.  Jones,  12  Pa.  St.  (/i)State  v.  McDiarmid,  27  Ark. 

3g9  179 ;   Commonw.  ex  rd.  v.  Walter, 

(d)Hunter  «,  Chandler,  45  Mo,  455.  83  Pa.  St.  105. 


464  QUO    WARRANTO. 

The  prosecution  by  quo  warranto  cannot  be  substituted 
merely  for  an  impeachment  for  misconduct  in  office,  (i) 

In  Illinois  it  has  been  held  that  the  question  of  the  consti- 
tutionality of  a  law  extending  the  limits  of  a  citj^  cannot  be 
raised  by  quo  warranto  questioning  the  authority  of  the  city 
officers  to  exercise  their  official  functions  within  the  extended 
boundary,  nor  in  any  case  can  the  mere  question  of  constitu- 
tionality be  brought  up  for  determination  in  such  a  mode.  (J) 
But,  as  to  an  office,  one  whose  title  is  derived  from  an 
unconstitutional  law  may  be  ousted  on  this  ground  by  quo 
warranto.  Hinze  v.  People,  92  111.  407.  Nor  can  it  be  em- 
ployed to  annul  a  city  ordinance  irr^ularly  enacted,  even 
if  the  irregularity  is  sufficient  on  proper  occasion  to  render 
the  ordinance  void.  And  hereon  the  court  of  Iowa  say : 
"The  proceeding  by  information  is  only  authorized  in  cases 
where  the  office,  franchise,  or  corporate  authorit}'  is  exer- 
cised in  the  absence  of  the  vital  element  of  power.  If  the 
power  attaches,  the  manner  of  its  exercise  cannot  be  chal- 
lenged by  information  or  quo  warranto.  Nor  is  it  within  the 
legitimate  scojDe  of  the  relief  afforded  by  such  proceedings  to 
declare  null  and  void  what  may  have  been  done,  but  oxAy  to 
affirm,  or  adjudge  as  unauthorized,  the  claim  to  the  office, 
franchise,  or  power  which  may  have  been  theretofore,  with  or 
without  color  of  right,  unlawfully  exercised,  and,  in  case  of 
adverse  claimants,  to  award  the  office  or  franchise  to  him  hav- 
ing the  legal  right  thereto. "(A;) 

Nor  can  quo  warranto  be  brought  to  test  a  person's  right  to 
an  office  in  a  corporation  which  has  no  legal  existence,  since 
it  would  be  nugatory  to  call  in  question  a  harmless  pretended 
claim  where  no  civil  right  is  in  controversy.  This  would  be^ 
as  Lord  EUenborough  remarked,  in  Rex  v.  Saunders,  3  East, 
119,  "as  if  a  stranger  should  come  into  town  and  claim  to  be 

(OState  V.  Gardner,  43  Ala.  250.  of  a  probate  judge,  in  North  Caro- 

But,    where    impeachment    is    not  lina.     People  v.   Heaton,  77  N.  C. 

available,  and   a    statute    provides  IS. 

for  a  forfeiture  of  office  by  miscon-  (7) People    c.    Whitcomb,   55   111. 

duct,  the  forfeiture  is  to  be  declared  176. 

1)3'  means  of  quo  warranto  proceed-  (A) State  v.  Lyons,  31  la.  434. 
ings — as,  for  example,  in  the  case 


QUO    WARRANTO.  465 

president  or  director."  If  there  is  no  corporation  there  is  no 
ofhce,  and  therefore  no  disputable  file  is  possible. (?) 

Where  a  charter  may  be  forfeited  on  the  corporation  exor- 
cising powers  not  conferred  by  law,  this  is  held  not  to  embrace, 
as  a  cause  of  forfeiture,  the  trespass  of  a  railroad,  or  other 
road,  being  laid  over  lands  without  lawful  authority,  because 
such  a  provision  merely  signifies  the  exercise  of  corporate 
powers  of  a  different  character  from  those  conferred  by  law, 
as  if  a  railroad  company  should  engage  in  banking,  and  a  mere 
trespass  by  a  corporation  is  never  held  to  work  ii  forfeiture. (w) 

In  Massachusetts  it  has  been  held  that  the  court  may  refuse 
to  entertain  an  information  against  an  officer  elected  only  for 
one  year,  upon  the  ground  that  "it  would  not  be  a  discreet  and 
proper  exercise  of  authority,  "(n) 

An  action  of  quo  icnrranto  does  not  lie  against  the  secretary 
and  treasurer  of  a  railroad  comj)any  holding  his  office  merely 
from  the  will  of  the  directors,  for  while  it  will  lie  for  usurping 
any  office  of  a  public  nature,  this  must  be  a  substantive  office, 
and  not  merely  the  function  of  a  deputy  or  servant,  or  employ- 
ment held  merely  at  the  will  of  another. (o) 

Where  an  election  of  managers  of  a  corporation  is  not  con- 
tested during  their  term  of  office,  the  legality  of  a  subsequent 
election  cannot  be  questioned  for  any  vice  or  irregularity  in 
the  first,  even  where  a  writ  of  quo  irarranto,  brought  within 
the  term  of  an  office,  may  be  tried  after  the  expiration  of  the 
term ;  for  title  to  a  past  and  defunct  office  cannot  be  tried  in 
a  proceeding  not  instituted  against  the  incumbents  during  its 
life-time,  but  against  their  successors. (/?) 

In  Georgia  it  is  held  that  the  title  to  an  office  will  not  be 
tried  in  a  proceeding  of  quo  n-arranto,v:hen,  at  the  time  of  trial, 
the  term  of  office  has  expired,  and  no  judgment  of  oti.ster  can 
be  entered  ;(f/)  and  this  I  take  to  be  the  general  rule.  J3ut 
yet  the  jurisdiction  may  still  be  retained  properly,  where  it  is 

(l)iiU\te  V.  J.elire,  7  Kicli.  324.  {o]Pvo\Ar  v.  Hills,  1  Liins.  |.\.  V.) 

(?rt)Stiite    V.    KilllMick    Tuiriitiko  20r>. 
Co.  38lnd.  72.  (^jCoiniiiunw.    v.   Siuilli,    4:.    Pa. 

(/i)Commoiiw.  v.  Atlioaiin,  3 Mass.  St.  UO 

286. 

(ry).Morris  v.  Underwood,  19  Ga.  559 
v.l— 30 


4^)0  QUO    WARRANTO. 

not  the  sole  object  of  the  proceeding  to  oust  an  incumbent, 
but  to  impose  a  fine,  or  costs,  or  damages  to  the  relator,  (r) 

§  466.  Whether  a  town  has  been  legally  erected  may  be 
determined  in  New  York  in  an  action  of  quo  warranto  against 
one  claiming  to  act  as  supervisor, (s)  and  the  question  as  to 
whether  the  town  has  a  legal  existence  is,  indeed,  the  very 
point  of  the  controversy.  But  this  appears  to  be  exceptional, 
according  to  the  principle  laid  down  in  the  preceding  section. 
The  legality  of  the  existence  of  a  school  district  may,  in  Iowa, 
be  inquired  into  by  a  direct  proceeding  of  quo  warranto, (t) 
which  does  not  seem  exceptional.  * 

The  right  to  a  military  office  may  be  tried  by  this  proceed- 
ing, and  it  is  held  herein  to  rest  upon  the  constitutional  pro- 
vision that  "the  military  shall,  in  all  cases  and  at  all  times, 
be  in  strict  subordination  to  the  civil  government,"  it  not 
being  a  department  of  the  government,  but  only  an  instru- 
ment to  execute,  in  some  particulars,  the  will  of  the  govern- 
ment, and  no  military  officer  having  any  authority  except  by 
the  civil  law  or  military  customs  thereby  recognized. (tt) 

And  a  county  school  superintendent  can,  in  Pennsylvania, 
only  be  removed  by  quo  warranto,  under  a  statute  providing 
expressly  that  he  may  be  removed  for  neglect  of  duty,  incom- 
petency, or  bnnioraJity,  by  the  general  superintendent  of  schools. 
He  must  be  summoned  to  answer  any  charge  brought  against 
him  under  the  statute,  although,  if  he  was  appointed  so  as  to 
be  removable  at  pleasure,  it  would  be  different,  since,  in  such 
:a  case,  the  will  of  the  appointing  or  removing  power  is  wholly 
without  control.  No  cause  needs  to  be  assigned  for  its  exer- 
cise, and  no  reason  can  be  asked. (?-)  The  principle  is  that 
where  appointments  are  made  under  powers,  as  of  a  statute, 
the  appointment  is  not  subject  to  revocation  unless  the  act 
creating  the  power  expressl}'  declares  it  to  be  so.  Otherwise, 
when  an  appointment  is  made,  the  incumbent  holds  in  con- 
templation of  law  directly  -from  the  authority  which  created 

.(?■) People   V.  Hartwell,   12  Mich.  (O^tate  v.  School  District,  2i>  la. 

JjOS.  2(35. 

(.sjPeople  V.  Carpenter,  24  N.  Y.  (i/)Commonw.    v.  Small,    20   Pa. 

58.  St.  33. 

,(«)Field  V.  Commonw.  32  Pa.  St.  481. 


QUO  warranto:  40)7 

the  power,  so  that  he  is  the  creature  of  thehiw,  and  stands  as 
if  his  name  had  been  mentioned  in  the  enabling  statute. (»•) 
It  seem  to  be  on  this  principle  that,  in  California,  qno  u-ar- 
rtinto  lies  against  a  pilot  appointed  by  the  board  of  pilot 
commissioners,  upon  whom  the  duty  of  appointing  devolves 
under  the  statute,  which  statute  defines  and  limits  the  pow- 
ers. (./•)  And,  also,  on  this  principle  it  is  that  the  secretary  or 
treasurer  of  a  railroad  company  cannot  be  made  to  answer  to 
a  writ  of  qtio  ivarranto,  as  we  noticed  in  the  preceding  section, 
his  office  being  merely  at  the  pleasure  of  the  directors,  and 
not  under  statute,  so  that  it  is  not  a  public  office.  It  is,  ac- 
i-ordingly,  different  with  the  officers  of  a  railroad  or  other  cor- 
poration, who  are  elected  as  prescribed  in  the  charter,  their 
offices  being  therefore  statutory  and  public. (//) 

It  is  also  on  the  principle  correlative  to  this,  namely,  that 
a  corporation  and  its  officers  are  only  answerable  to  the  sov- 
ereign authority  by  which  it  is  created,  that  the  officers  of  a 
bank  organized  under  the  national  currency  act  caiinot  be 
made  to  answer  a  writ  of  quo  warranto  issued  by  state  courts 
while  they  are  so  answerable  to  the  United  States. (r) 

It  is  also  on  this  principle  that  the  trustees  of  an  incorpo- 
rated church,  having  a  special  legislative  charter,  are  held 
answerable  to  the  civil  courts  on  quo  warranto,  as  to  their 
holding  the  office,  although  the  legality  of  the  holding  also 
depends  upon  regulations  made  by  the  church  authorities, 
which  regulations  must  of  neeessit\'  form  a  part  of  the  inves- 
tigation in  the  quo  warranto  proceedings. (a) 

A  proceeding  to  escheat  property  held  by  a  corporation  is 
by  quo  warranto  appropriately,  so  provided  by  statute,  some- 
times. (6) 

In  Ohio,  where  the  franchise  of  a  private  corporation  is  to 
be  drawn  into  question,  the  proceeding  should  hv  under  the 

((rUIeuncns  Case,  13  Pel.  (U.  S.)  (^/)State  v.  Ferris,  45  Mo.  ISi). 

23,;  (/>) West's  Appeal,  (54  Pa.  St.  104. 

(j)  People?).  AVoo(H)ury,  14  Cal.  43.  But  quo  warranto  U  not  a   proi)er 

(//iPcople  ».  f5iis(iiu'lianna  K.  It.  remedy  to  recover  real  estate,  e.\- 

fj-.  Barb.  '.'j-A;  People  v).  Albany,  etc.,  cept  on  escheat,  or  forfeiture  to  tiu! 

]{.  R.  (same  eas<-)  38  How.  Pr.  237.  state.     Slate  ex  rel.  v.  Sl.ieifi.s  f.i; 

(3)State  V.  Curtis,  35  Conn.  378.  Ind.  521. 


403  QUO    WARRANTO. 

statute  agaiust  the  individuals  usurping  the  franchise,  (c)  This 
is  phxced  on  the  authority  of  Rex  v.  Citu  of  London,  by  the 
court  quoting  with  aijproval  a  statement  of  the  general  rule, 
thus:  "He  says  the  rule  is  this:  when  it  clearly  appears  to 
the  court  that  a  liberty  is  usurped  by  wrong,  and  ui3on  no 
title,  judgment  of  ouster  only  shall  be  entered;  but  when  it 
appears  that  a  liberty  has  been  granted,  but  has  been  mis- 
used, judgment  of  seizure  into  the  king's  hands  shall  be  given. 
The  reason  is  given:  that  which  came  from  the  king  is  re- 
turned there  by  seizure ;  but  that  which  never  came  from  him, 
but  was  usur]3ed,  shall  be  declared  null  and  void.  Judgment 
of  ouster  is  rendered  against  individuals  for  unlawfully  as- 
suming to  be  a  corporation.  It  is  rendered  against  corpora- 
tions for  exercising  a  franchise  not  authorized  by  their 
charter.  In  such  case  the  corporation  is  ousted  of  such  fran- 
chise, but  not  of  being  a  corporation.  Judgment  of  seiz- 
ure is  given  against  a  corporation  for  a  forfeiture  of  its  cor- 
porate privileges."  Also,  People  \.  Richardson.  4  Cowen,  DT, 
is  cited :  "If  the  information  be  for  using  a  franchise  by  a 
corporation,  it  should  be  against  the  corporation.  If  for 
usurping  to  be  a  corporation,  it  should  be  against  the  jjartic- 
ular  persons." 

§  467.  It  has  been  sometimes  contended  that  writs  of  quo 
u-arranto  should  l)e  confined  to  the  subjects  to  which  the 
ancient  writs  were  applied,  which  of  cmirse  would  render  im- 
possible the  forfeiture  of  a  railroad  charter  and  the  like, 
these  being  modern  in  their  origin.  But  this  ground  has 
justly  been  held  untenable. (VZ) 

§  468.  The  fact  that  a  city  council  has  admitted  an  inel- 
igible member  to  a  seat  therein,  and  refused  to  expel  him, 
does  not  prevent  courts  from  investigating  the  matter  on  quo 
warranto  and  ousting  tlie  member. (e) 

§  469.  As  to  election  matters,  it  has  been  held  that  where 
a  general  municipal  election  was  held  on  a  wrong  da}-  by 

(c)State  V.  Gas  &  Coke  Co.  18  O.  ((f)State  v.  K.  R.  Co.  34  Wis.  -JO.-). 

St.    262.     And   so   of   a   municipal  (fi)Commonw.  r.  Allen,  70  Pa.  St. 

corporation  in  New  York.     People  472. 
V.  Clark,  70  N.  Y.  518. 


QUO  WARRANTO.  4G9 

mistake,  not  discovered  till  afterwards  by  officers,  candidates, 
or  voters,  and  where  there  was  no  pretence  of  fraud  or  cor- 
ruption, the  court  has  a  discretion  to  refuse  to  allow  an  in- 
formation to  be  filed  against  an  alderman  elected  at  that 
election.  (/) 

The  determination  of  canvassers  has  no  such  t-onelusive 
validity  as  to  prevent  a  court  from  inquiring  into  the  result 
of  an  election  on  quo  K-arrantu.(g) 

In  Missouri  a  contested  election  is  inquired  of  on  a  quo 
ivarranto.{]i)  But,  where  the  attorney  general  files  the  infor- 
mation, the  qualifications  of  electors  cannot  be  inquired  into, 
nor  the  qualifications  of  a  party,  other  than  the  incumbent, 
to  hold  the  office. (i)  But  it  is  different  in  "Wisconsin,  it 
seems,  for  there  it  is  held  the  question  is  whether  defendant 
received  a  majority  of  all  the  votes  which  the  canvassers  had 
a  right  to  count,  which  implies  an  examination  into  the  qual- 
ification of  the  electors. (_/)  And,  accordingly,  where  it  ap- 
pears that  there  was  no  registry  of  the  voters,  and  none  of 
the  voters  gave  the  affidavit  required  in  the  absence  of  a  reg- 
istry of  their  names,  the  whole  vote  of  the  election  precinct 
must  be  rejected. (A-) 

§  470.  In  Kansas,  if  a  new  county  has  been  organized 
through  falsehood  and  fraud,  by  presenting  to  the  governor  a 
false  memorial  and  false  census  returns,  the  supreme  court 

(/)Statc  V.   Tolan,  38  N.  J.  F/iw.  liowcvcr.  can  he  inquired  into  liy 

lD(j.    xVnd  so,  where  one  was  elected  quu   imrrauto   proceedings    against 

on   a    prudential    committee   of    a  those  claiming  office  under  it,  (Stc- 

school  district,  hut,  on  a  mistake,  phens  /:.  People,  89  111.  33^,)  pro- 

the  election  proceeded,  and  finally  vided  they  have  taken  the  oath  of 

resulted  in  the  choice  of  another,  oflice— this  lieing  of  itself  .i  snlli- 

it  was  held  that  the  general  accpii-  cient    nxer   to   authorize   the    writ, 

esccnce  of  the  voters  and  the  can-  People  ex  rd.  v.  Callaghan,  s:j  111. 

didates  waived   ohjection,  and   es-  12il.     And  the  court  may  go  heliind 

pecially  so  where  the  candidate  first  the  returns:  in  New  York,  at  lea>t. 

elected"   and    finally    defeated    had  People  y;.  McCatisland,  .''.4  i low.  Pr. 

.subsequently   disqualified    himself  l;''l- 

by  taking   an   incompatible   oflice.  (ry)Slate  ?:.  Clark,  f   Dulch.  .'i.'-.r.. 

Cate  «.  Farber,  56  K.  11.  224;  and  (//)Bo\vcn  v.  lli.xon,  4r)  ,\Io.  341. 

.see,    to    similar    eflfect.   People    v.  («)State  v..  Vail,  ".3  Mo.  103. 

Waite,    70   111.   2.5,   and   People  v.  (.y)State  «.  Tierney,  23  Wis.  4;!:t. 

JVIoore,  73  III.  132.    A  void  election,  (/■)ll)id,  fi31. 


470  QUO    WARRANTO. 

may  proceed  by  quo  icarrcuito  against  the  persons  assuming 
to  act  as  officers  of  such  county,  and  inquire  into  the  false- 
hoods and  frauds  whereby  the  organization  was  effected,  and 
dechire  it  illegal  and  void,  even  if  the  legislature  has  appar- 
ently recognized  it  as  an  existing  corporation. (/) 

§  471.  I^pon  the  ground  that  the  public  interests  require 
the  functions  of  public  offices  to  be  exercised  during  jjending 
litigation,  as  well  as  at  other  times,  a  court  may  properly 
dissolve  a  temporary  injunction  restraining  officers  de  Jacta 
and  claiming  to  be  officers  de  jure,  from  exercising  such  func- 
tions during  the  2:)endency  of  proceedings  in  quo  icorranto.im) 

(i)State  V.  Ford  Co.  12  Kan.  444.       irarnnilo.     Alderman  v.   Directors^ 
And  so,  the  legality  of  a  school  dis-      91  111.  179. 
trict  may  be  inquired   into  by  quo  (m)State  v.  Dukee,  12  Kan.  314. 


MANDAMUS.  471 


CHAPTER  XV. 

MANDAMUS. 

$  472.  Nature  of  writ. 

473.  Discretionary. 

474.  When  other  cases  pending. 

475.  Common-law  rules. 

476.  Not  allowed  when  there  are  other  adequate  remedies. 

477.  Writ  to  enforce  official  duty. 

478.  Demand  and  refusal. 

479.  Matters  of  discretion — illustrations. 

480.  The  writ  not  a  subslitute  for  appeal. 

481.  Only  enforces  possible  acts. 

482.  What  courts  may  issue. 

483.  AVrit  serving  as  a  writ  of  inquiry. 

484.  Mandamus  from  an  appellate  court. 

485.  Not  to  enforce  matters  arising  from  contract. 

486.  Executive  officers— extradition. 

487.  State  treasurer. 

488.  Secretary  of  state 

489.  Writ  issued  to  inferior  courts. 

490.  Not  to  condemn  lauds. 

491.  College-professorship  case,  in  Michigan. 

492.  Courtesy  among  judges  as  to  issuing  writ. 

493.  Enforcing  compensation  to  school  teacher. 

494.  Public  improvements— various  matters  as  to  payments. 

495.  Ferry  tolls. 

496.  Private  corporations. 

497.  Church  and  society  matters  and  membership. 

498.  Bids  enforced  by  mandamus. 

499.  Elections. 

500.  Ousting  jurisdiction  by  expiration  of  office. 

501.  Mandam,ns  not  to  try  title  to  office. 

502.  But  demand  for  room,  keys,  etc.,  may  be  enforced. 

503.  Location  of  highways. 

.504.   Compelling  successor  to  .seal  a  county  warrant. 

505.  Compelling  to  correct  a  deed  or  sign  a  contract. 

506.  Compelling  admission  of  a  colored  child  to  the  public  schools- 

enforcing  right  of  a  school  comniitiee. 

507.  Surveys. 

508.  Miscellaneous  particulars. 

509.  Keturn  to  the  writ. 

510.  Relators 


MANDAMUS. 


§  472.  The  v»rit  of  mandamus  has  been  defined  to  be  "a 
high  prerogative  writ,  to  be  awarded  in  the  discretion  of  the 
court,  and  which  ought  not  to  issue  in  any  case,  unless  the 
party  applying  for  it  shall  show  a  clear  legal  right  to  have  the 
thing  sought  by  it  done,  and  in  the  manner  and  by  the  per- 
son or  body  sought  to  be  coerced,  and  must  be  effectual  as  a 
remedy  if  enforced,  and  it  must  be  in  the  power  of  the  party, 
and  his  dut}-  also,  to  do  the  acts  sought  to  be  done.  It  is 
well  settled  that  in  a  doubtful  case  this  writ  should  not  be 
awarded.  It  is  never  awarded  unless  the  right  of  the  relator 
is  clear  and  undeniable,  and  the  party  sought  to  be  coerced 
is  bound  to  act. "(a)     The  object  of  the  present  chapter  is  to 


(^Oi'eoplc  V.  Hatch,  38  111.  140: 
Maliley  v.  Judge,  41  Mich.  32. 

That  is  to  say,  that  on  tlu;  one  part 
there  must  be  a  clear  riiiht,  and  on 
the  other  a  clear  legal  dut^-.  As  to 
the  right  of  the  applicant,  theret'ore, 
it  must  not  he  doubtful.  Thus,  if 
the  writ  is  sought  to  enforce  an  ap- 
portionment and  division  of  a  school 
fund,  the  relator  must  show  a  vested 
right  in  the  fund  (People  ex  rel.  v. 
Trustees,  8(j  111.  613  ;)  and  he  must 
not  only  show  that  he  has  a  right 
to  have  the  thing  lie  seeks  to  have 
done,  but  also  that  he  has  a  right 
to  have  it  done  in  the  manner  asked, 
and  by  the  person  or  body  sought  to 
be  coerced.  People  ere  re?.  Klokke, 
92  111.  134.  The  writ  will  not  issue 
if  the  right  is  dubious,  (State  v.  Bab- 
cock,  f)l  Vt.  570,)  and  so  the  appli- 
cation must  state  specifically  what 
Is  required.  State  ex  rel.  v.  R.  H. 
.59  Ala.  321.  Thus,  to  Iiave  a  right 
to  compel  the  allowance  of  an  ap- 
peal, he  must  liave  been  an  actual 
or  at  least  virtual  party  to  the  suit. 
Cutting's  Case,  94  U.  S.  14.  In 
such  a  matter,  however,  an  iiiter- 
vciiiiifj  party  may  possess  the  same 
right  as  an  original  party.  Jordan's 
Case,  94  U.  S.  248.  Also  the  right 
of  a  complainant  must  be  specific, 


complete,  and  legal ;  and  independ- 
ent, usually,  of  what  lie  merely  holds 
in  common  with  the  public  at  large. 
Commonweahh  ex  rel.  v.  Mitchell, 
82  Pa  St.  343.  He  must  have  a  di- 
rect personal  interest,  in  some  man- 
ner, to  give  him  a  status  in  court, 
(School  Trustees  v.  People  ex  rel.  71 
111.  559  ;)  and  so,  if  one  brings  inaii- 
ihuiius  to  c  mipel  the  opening  of  a 
highway,  he  must  show  a  personal 
interest  other  than  an  excepted  di- 
version of  travel  from  his  land  to 
the  proposed  route,  because  his  in- 
terest does  not  depend  on  the  open- 
ing of  the  road  merelv,  but  on  the 
use  of  it  by  the  public.  Moon  v. 
Cort,  43  la.  503.  If  jxirt  of  a  claim 
is  illegal,  it  will  vitiate  the  whole,  in 
an  application  for  mandamus.  Cook 
V.  Treasurer,  50  Vt.  231. 

Pailies  only  incidentally  or  col- 
laterally interested  in  a  matter  can- 
not properly  be  parties  to  a  man- 
(lamiis  proceeding,  either  as  peti- 
tioners or  defendants.  State  ex  rel. 
V.  Smith,  7  S.  C.  275. 

However,  there  is  not  entire  uni- 
formity among  the  authorities  on 
this  matter.  Some  hold  that  when 
the  question  is  one  of  public  rigbt, 
and  the  Avrit  is  asked  for  to  enforce 
the  performance  of  a  public  duty, 


MANDAMUS. 


473 


unfold  and  sliov^  the  application  of  the  jurisdictional  features 
of  this  comprehensive  definition. 

§  473.  It  is  thus  defined  to  be  a  prerogative  writ,  and, 
therefore,  discretionary  as  to  its  being  awarded  on  applica- 
tion— not  absolutely  so,  as  formerly  with  the  English  sover- 
eign, but  relatively  so.  The  discretion  to  be  exercised  is  not 
an  arbitrary,  but  a  sound  judicial,  discretion,  so  that  in  a 
proper  ease  it  should  not  be  denied.  But  a  court  ma}-  prop- 
erly refuse  to  issue  a  writ  in  all  cases,  where  substantial 
interests  are  not  involved,  even  though  it  would  be  just  to 
grant  it.  And  so,  where  suit  was  brought  by  petition  for  a 
vuDidainus  to  comj^el  the  auditor  of  public  accounts  to  draw 


the  relator  does  not  need  to  show 
any  legal  or  special  interest  in  the 
result,  since  he  is  interested  as  a 
<?.itizen  in  having  the  laws  executed 
-and  the  right  enforced.  State  ex  rel. 
V.  Gracey,  11  Xev.  223;  Moses  e(  al. 
V.  Kearney,  31  Ark.  261.  And,  in 
Wisconsin,  this  has  been  carried  so 
tar  as  to  hold  a  mere  private  person 
may  bring  an  action  bj-  maiidaiiius, 
in  the  name  of  the  state,  to  comi)ol 
the  secretary  of  state  to  revoke,  as 
required  bj'  statute,  the  license  of 
a  foreign  corporation — is  an  insur- 
ance company — to  do  business  in 
the  state.  State  ex  rel.  v.  Doyle,  4U 
Wis.  175.  Probably  the  principle 
involved  in  tliese  cases  will  finally 
prevail,  so  that  any  citizen  will  be 
allowed  to  enforce  a  common  as 
well  as  a  private  oi'  si)ecia]  right. 

Again,  there  must  be  a  present 
legal  dutij  on  tlie  defend;'.nt  to  per- 
form what  is  souglit  to  l)e  enfoncHl. 
Thus,  where  a  muiulaiiins  was  sued 
out  to  compel  payment  to  a  con- 
tractor, out  of  a  special  assessment 
Avliich  had  l)een  dechxred  invalid, 
the  writ  was,  of  course,  denied 
Oei)hart  V.  East  Saginaw.  4i»  Mich. 
336.  A  mandamus  is  never  grant - 
•€d  to  compel  the  performance  of  an 


act  or  dutjr,  whicii,  without  sucli 
mandate,  it  w^ould  not  be  lawful  to 
do.  State  ex  rel.  v.  Commissioners, 
57  Ala.  240.  And  so  a  relator  must 
not  only  show  that  an  officer  has 
failed  to  perform  a  duty  required, 
lint  that  the  performance  is  due  at 
the  time  of  the  application.  Stale  v. 
Gracey,  H  Isev.  223.  However, 
where  there  was  a  faihire  on  the 
part  of  the  predecessor  of  the  officer, 
he  may  be  held  liable  to  the  per- 
formance, if  the  right  of  the  relator 
.still  remains.  As,  for  example,  if  a 
comptroller  of  a  city  refuses  to  pay 
a  ju.st  demand,  and  his  term  of  of- 
fice expires,  the  claimant  may  sue 
out  a  writ  of  mmidajnus  to  compel 
the  successor  to  make  the  payment, 
on  iii<  rcliKal  lo  do  so.  Where  a  city 
is  liable,  a  court  is  not  hound  to  re- 
gard a  change  of  incumbents  in  of- 
fice, tlie  city  itself  l)eing  bound  to 
save  its  officer  from  all  jiersoiial 
harm  therein.  People  ex  rel.  v. 
Dannatt,  77  N.  Y.  46. 

But,  \i  ii  perforiitaure  has  in  itself 
beroiiie  uajiossilde,  no  mandamuK  can 
pro|)('rly  he  issueii  or  sustained.  If 
an  officer  lias  even  put  it  (Uit  of  his 
])(i\vci-  to  do  the  act  recjuirefi,  lie 
may  be  answerable  in  damages  for 


474 


MANDAMUS. 


his  warrant  on  the  treasury  for  two  dollars,  in  favor  of 
relator,  as  pay  for  services  as  a  member  of  the  legislature  for 
a  certain  day — the  real  object  being  to  obtain  a  decision  as  to 
Avlietber  the  governor  had  properly  or  improperly  prorogued 
tlie  legislature,  on  a  disagreement  of  the  two  houses  as  to  the 
time  of  adjournment — the  court  saw  fit  to  blink  the  real  pur- 
pose of  tlie  suit,  it  l)eing  covert,  and  to  hold  that  the  petition 
should  not  be  entertained  because  there  were  no  substantial 
interests  involved  in  the  awarding  of  the  warrant,  on  the 
ground  that  to  entertain  the  jurisdiction  would  encourage 
petty  litigation  at  the  expense  of  the  state,  and  produce  delay 


it  to  the  party  intcT'cstwl.  liut  a 
ituinduiiiiis  will  not  lie  against  iiini. 
Kice  V.  Walker,  44  Iowa,  4oS.  And 
so,  if  a  term  of  ottice  has  expired,  a 
iiKniJiiiii  Hx  is  not  available  to  com- 
pel llie  late  incumbent  to  perform 
a  strictly  oflicial  act,  sucli  as  to  va- 
cate an  order  be  had  made  illegally. 
Trice's  Case,  53  Ala.  540.  A  defend- 
ant must  still  have  it  in  his  power 
lo  perform.  People  e,v  rel.  v.  Hayt, 
(W;  N.  Y.  (;(tti.  Even  if  the  act  is 
not  pbysically  impossible,  yet  if  it 
is  legally  imp.)ssible,  no  mnndaim.is 
will  lie.  Thus,  where  a  commission- 
er of  stale  lands  issued  a  patent  to 
a  wrong  person,  it  was  held  that 
the  true  claimant  must  bring  a  suit 
in  equity  to  set  aside  the  patent, 
since  tliereby  the  state  had  parted 
with  tlie  legal  title,  and  could  not 
reconvcy  it.  Smithes  v.  Closely,  31 
Ark.  425.  And  so  mandamus  will 
not  lie  to  compel  a  justice  of  the 
peace  to  set  aside  a  judgment  he  has 
rendered.  O'Brien  v.  Tallman,  36 
Mich.  13.  And  so,  where  perform- 
ance depends  on  the  co-operation 
of  a  tliird  person,  who  is  not  within 
the  coercive  power  of  the  court,  a 
laaiuhanus  cannot  be  maintained. 
State  ex  rel.  v.  Jumel,  30  La.  An.  237. 
Again,  the  duty  to  be  performed 


must  be  of  a  positive  character, 
since  discretion,  where  it  properly 
exists,  must  not  be  coerced.  Onlj- 
abuses  of  discretion  can  be  inter- 
fered with,  and  t!ie  proper  bounda- 
ries of  the  discretion  be  maintained. 
Virginia  v.  Rives,  100  U.  S.  314. 

And  so,  where  an  attoiney  general 
has  a  discretion  in  tlie  matter  of  a 
quo  icarranto  to  try  the  right  to  a 
public  office,  a  claimant  of  the  office 
cannot  compel  him  to  proceed  with, 
an  action.  People  ex  rel.  v.  Fair- 
child,  67  IS".  Y.  331;  Yates  v.  Attor- 
ney General,  41  Mich.  728.  And  so- 
a  judge  cannot  be  compelled  by 
mandamus  to  issue  a  maiidaiaus; 
and  more  particularly  where  an  ap- 
peal is  allowed  from  liis  refusal  to 
grant  the  application.  Grant  & 
O'Barr's  Case,  53  Ala.  17.  And  so- 
an  auditor  who  has  a  discretion  to 
receive  tax  returns,  sent  in  after  the 
day  designated  by  law,  cannot  be 
compelled  by  mandamus  to  receive 
them  after  the  day.  Houghton 
County  V.  Auditor,  36  Mich.  271. 
,  Nor  will  a  court  control  a  discre- 
tion as  to  removing  officers.  State 
V.  Fire  Com'rs,  26  Ohio  St.  24.  And 
so  a  court  will  not  compel  by  mqn- 
damics  the  allowance  of  a  claim  ore 
which  a  board  of  county  commis- 


MANDAMUS. 


475 


of  other  more  important  interests;  and  yet  the  question  of 
the  governor's  action  was  incidentally  discussed  by  the 
opinion. (/>)  And,  in  its  discretion,  a  court  will  refuse  to 
grant  a  motion  in  mandamus  which  would  have  the  effect  of 
"placing  a  judge  between  two  fires,"  because  this  "would  be 
very  indiscreet. "(c)  And  the  discretion  may  be  exercised 
even  if  it  appears  that  the  applicant  is  otherwise  remedi- 
less, as  the  court  will  grant  or  withhold  the  writ,  as  may 
seem  to  be  best  in  the  promotion  of  the  ends  of  substantial 
justice.  (J) 

Nevertheless,  it  is  held  contrariwise  by  some  of  the  state 
courts,  and  by  the  supreme  court  of  the  United  States,  that 
the  writ  of  mandamus  is  a  writ  of  right,  and  not  a  prerog- 
ative writ,  and  is  nothing  more  than  the   ordinary  process 


sioners  has  acted,  and  which  tliey 
have  refused,  (State  ex  rel.  v.  Board 
of  Com'rs,  2(j  Ohio  St.  305;)  the 
(daimant  must  appeal,  or  bring  suit 
and  obtain  judgment,  before  a  man- 
dmnvs  will  lie  to  enforce  his  de- 
mand. Portwood  V.  >l(jntgomery 
Co.  52  Miss.  523.  And  if  a  judg- 
ment is  rendered  against  one  by  a 
county  court,  on  application  for  a 
warrant  on  the  treasury  payable  out 
of  a  particular  fund,  to  satisfy  a 
judgment  he  had  previously  ob- 
tained, a  mandamus  will  not  lie,  be- 
cause the  act  of  refusal  is  a  judicial 
act,  and  an  appeal  lies  from  the  de- 
cision. State  ex  rel.  v.  County 
Court,  68  Mo.  29.  And  so  a  state 
officer  can  only  be  compo  led  liy 
uiundanius  to  the  performance  of  a 
purely  ministerial  act.  State  ex  rel. 
V.  Johnson,  28  La.  An.  932.  And 
so  of  other  officers.  State  ex  rel.  v. 
Police  Jury,  29  La.  An.  140.  And 
so  a  city  cannot  l)e  compelled  by 
iiiandamiu  to  pay  an  unliciuidated 
demand,  since  this  requires  a  judi- 
cial act  to  ascertain  what  is  due, 
and  the  payment  is  not,  therefore,  a 
mere  ministerial  act.    People  «.  De- 


troit, 34  Mic-h.  20L  Creditors,  how- 
ever, may  thus  enforce  the  payment 
of  fixed  or  positive  claims  on  which 
judgment  is  entered.  State  ex  rel. 
V.  Pillsbury,  Mayor,  30  La.  An.  705. 

If  an  official  duty  is  to  be  per- 
formed, on  the  happening  of  a  par- 
ticular event,  the  officer  cannot  ca- 
priciously deny  the  liappening  of 
the  event  as  an  excuse  for  non-per- 
formance. If  the  event  can  be 
proved  to  have  really  happened, 
mandamus  will  lie  on  his  refusal  to 
perform.  Stockton  K.  Co.  v.  Stock- 
ton, 51  Cal.  329. 

'The  matters  in  this  note  are 
treated  below  in  the  text  more  at 
large.  These  are  the  general  prin- 
ciples. 

(^j)Peoplci'.  Hatch,  33  111.  134. 

(r')Fieming"s  Case,  4  Hill,  584. 

((Z)Mc('lelland  v.  Dowling,  37 
How.  Pr.  394.  In  Wisconsin  it  is 
held  that  courts  have  di.screlion 
iinly  in  matters  of  private  right, 
and  not  where  the  writ  is  invoked 
in  behalf  of  the  stale  ns  a  pure  pre- 
rogative writ  in  matters  of  public 
right.  State  ex  rel.  v.  Doyle,  40 
Wis.  221. 


476  MANDAMUS. 

of  a  court  of  justice,  to  which  every  one  is  entitled  when  it 
is  the  appropriate  remedy. (c) 

§  -1:74.  On  the  ground  of  discretion  it  has  been  hekl  that, 
even  wliere  parties  have  commenced  other  proceedings,  a  writ 
may  be  awarded  if  the  court  judges  it  i^roper,  although  onh* 
in  extraordinary  cases  will  the  discretion  be  thus  exercised, 
it  being  the  ordinary  rule  that  nutinl'tmns  will  be  declined 
wliere  there  are  other  remedies. (/) 

§  475.  When  the  power  to  issue  has  been  granted  in  gen- 
eral terms  to  a  court,  its  discretion  therein  is  to  be  guided 
by  common-law  rules  ;(//)  and  in  general  the  writ  should  be 
granted  only  to  prevent  a  failure  of  justice,  and  for  some  im- 
portant public  purpose,  although  the  value  of  the  matter,  or 
the  degree  of  pul)lic  importance  attached  to  it,  ought  not  to 
be  too  nicsly  or  scrupulously  estimated;  and  heuje  it  has 
been  held  that  to  preserve  the  rights  and  secure  the  order, 
peace,  and  quietness  of  a  church  society  may  be  regarded 
properly  as  of  great  public  interest  and  importance. (/<) 

§  476.  As  intimated  above,  inasmuch  as  the  chief  ol)ject 
and  utility  of  a  writ  of  mandamnn  is  to  prevent  a  failure  of 
justice,  it  will  not  usually  be  allowed  when  there  is  an  ade- 
quate renied}'  either  at  law  or  in  equity,  although  it  ought  to 
be  granted  where  the  law  has  established  no  specific  renied}', 
and  when,  in  justice  and  good  government,  there  ought  to  be 
one;(i)  as,  for  example,  where  a  law  proves  defective  and 
insufhcient  to  compel  a  public  officer  to  perform  a  clearly- 
defined  public  duty.(,/)  So,  in  general,  a  ijuiiuhdiiiis  will  be 
refused  where  the  state  has  suffered  loss  from  the  df  Fault  of 
a  public  treasurer,  unless  the  bond  of  the  defaulting  officer  has 
been  exhausted,  or  else  it  appears  that  a  suit  on  the  bond 

(f')C"oinm()n\v.  of  Ky. '/;.  DcnnisDii,  (v)Fitcli    /'.    ^rcDiannid.   2(1   Arl:. 

Gov.,  2-1:  Hcnv,  (U.   S.)  iiS;    KcmliU  4s(i. 

V.    U.    tS.    12    Pel.    (U'l:    Kfiulall    v.  (//)( 'IhutU  in  CUielsea  v.  Slack,  (J 

Stoke-;,  3  How,  li>(i.     In   Illinois  it  Cii-li.  :;39. 

is  now  made  u  common  remedy  l\v  (/)District    v.    Perkin.';,  4!i   X.    fl. 

statute,  as  constrvied  b\-  the  supreme  540. 

court.     People  t'.v  rel.  v.  Weber,  Sti  (_/) People    v.    Martin.    (32     Barb. 

111.  2-3.  .")72. 

(/) People  V.  Solomon,  51  ill.  3^. 


MANDAMUS  477 

would  be  unavailing ;(/,:)  or,  where  there  has  been  a  refusal  to 
transfer  shares  in  a  corporation,  if  the  petitioner  can  l)e 
indemnified,  by  judgment  for  damages,  in  an  action  at  law; (7) 
the  general  rule  being  that,  when  a  statute  gives  power  to  a 
particular  person,  or  imposes  an  obligation  to  do  some  partic- 
ular act,  and  provides  no  adequate  specific  remedy  for  a  non- 
performance, a  iiiitnddimis  is  properly  allowable.! /») 

It  makes  no  difference  whether  the  remedy  be  at  law  or  in 
equity;  so  that  a  iiuiiKlaniiis  is  not  to  be  granted  where  there 
is  a  full  and  specific  equity  relief  available;!;/)  as  where  a 
law  authorizing  a  special  election  fails  to  provide  for  any 
mode  of  contesting  the  election  and  recanvassing  the  votes 
cast,;  but  equity  will,  on  the  ground  that  this  is  a  matter  of 
pu^)lic  concern,  entertain  jurisdiction  to  relieve  against  fraud 
therein,  and  carr}^  out  the  intention  of  the  law  in  submitting 
the  special  question,  such  as  the  removal  of  a  county  seat  to 
a  vote  of  the  people  ;  in  that  case,  an  application  for  a  man- 
ihinui.^  will  be  refused. (o) 

But  the  remedy  provided  must  l)e  sure  and  adequate,  and, 
where  there  is  material  doul^t  concerning  it,  this  doul)t  will 
justify  the  jurisdiction  to  be  exercised  in  issuing  the  writ.(j'j) 
And  so,  if  trover  or  replevin  will  lie  to  compel  delivery  of 
records  to  the  proper  officer,  yet  if  manduinus  is  a  more  ap- 
propriate or  effectual  remedy,  it  will  l)e  awarded. (7)  And  so, 
if  ministerial  officers  are  liable  to  an  action  on  the  case  for  a 
neglect  of  duty,  yet  they  may  be  compelled  by  rndtulaiiins  to 
exercise  their  functions  according  tolaw.('r) 

(/t)^^t;ite   •/).    Hoaid.    etc.,    '1^>    Jnil.  011   the    n^latioii   of  one  who   li:is  a 

210.  cli'ar  riglit    to   havt;  it    pci't'onncd, 

{/j^lurray  v.   Stevens,    1  in    \[ass.  and  where  tliero  isno  otlieradeqiir.le' 

i),-,.  lci>'al  I'enicdy.    State  «.  Mew  Haven, 

!///)\Vinl<rs  v.  llrirs,  etc.,  (J  Cold.  etc.,   Co.   45    Conn.   .■!:{2.      In    M\-w 

3;j().  \nYk  it  is  held  lately  tliaL  the  stat- 

(//jllardcastie  «.  K,  K.  :V1  .Md.  '■)'.',.  ute  on  «/a/u/"/«".f  was  "  intended  to 

(f>) People  ?!.  Wiant.4'^  III.  'IM.  providea  euniulalivc,l(ssexpensive, 

(/))People  V.  J  lead,  25  111.  :52!i.  and  more  speedy  I'eniedy,  .so  that  it. 

(7)Sudhury  Parisli  ?;.  Stearns.  21  is  niaiiditiry  even  wlieri' th<T<;  is  a 

Pick.   J51.  cause    of     aclion     e.vislin.t;'    wliicli 

(rjPeople  «.  Jjoiicks,  2s  Cal.  71.  ndiilil  he  made  availal)le  in  anolhur 

Theol)ject  of  a  writof  wa/ir/'O////.'*  foiin  of  remedy.     Peoi)le  i:r  rrl.  v. 

is  to  enforce  a  plain,  positive  duty,  Supervisors,    7('    N.    V.    22:i.     I5ut 


478 


MANDAMUS. 


§  477.  A  mandamus  is  the  appropriate  remedy  to  enforce 
the  performance  of  an  official  duty  enjoined  by  the  statute, 
provided  the  statute  makes  it  clearly  an  official  duty.  In  a 
case  where  the  relator  claimed  to  be  an  employe  of  a  marine 
hosi^ital,  and  applied  for  a  mandmrms  to  compel  the  com- 
missioners of  emigration  to  pay  the  rent  of  a  building  he  had 
occupied,  in  consequence  of  the  destruction  of  quarantine 
buildings  by  fire,  it  was  held  that  the  writ  must  be  denied, 
because  the  relator  could  not,  Ity  liis  own  act.  by  going  out- 
side the  quarantine  enclosure  and  renting  another  house,  cre- 


where  a  suit  in  equitj'  is  available, 
this  fact  will  iisuall}-  prevent  a  pro- 
ceeding bv  mandamus.  Ham  «.  R. 
R.  Co.  29  Ohio  St.  17-4.  And  so, 
where  the  proper  remedy  for  an 
erroneous  assessment  of  taxes  is  by 
application  to  a  board  of  equaliza- 
tion, from  whose  decision  an  appeal 
may  be  taken,  matidumua  is  not 
available  in  order  to  strike  out  an 
eironeous  assessment.  Meyer  v. 
Dubuque  Co.  43  la.  .592.  And  so 
mandamus  is  not,  properly,  a  re- 
visory writ,  and,  where  a  supersedeas 
is  the  remedy  to  prevent  the  execu- 
tion of  an  erroneous  decree,  man- 
damus cannot  be  resorted  to  for  that 
purpose,  (Bryant  v.  Stephens,  58 
Ala.  637,)  since  herein  is  a  specific 
and  adequate  remedy  to  enforce  the 
rights.  Murphy  v.  State  ex  rel.  59 
Ala.  G39.  But  where  one  holds  a 
judgment  against  a  municipal  cor- 
poration he  can  bring  a  writ  of 
mandamus  to  compel  the  levying  of 
a  tax  to  pay  the  judgment,  because 
there  is  no  other  adequate  remedy. 
City  Council  of  Eufaula  «.  Hickman, 
57  Ala.  .339.  And  so  one  who  ap- 
plies for  a  writ  of  mandamus  must 
show  his  right,  and  that  he  has  no 
other  adequate  remed}-.  People  ex 
rel.  V.  Comm'rs,  88  111.  141  So, 
where  an  indictment  will  lie  for 
obstructing  a  public  highway,  a 
mandamus    will    not    be    granted. 


Comm"rs  v.  People  ex  rel.  73  111. 
203.  And.  if  a  pi-oper  remedy  is  quo 
warranto,  this  must  be  pursued,  and 
a  re-canvass  of  votes  cannot  be 
compelled  by  mandamus.  Swain  r. 
Mcliae,  80  X.  C.  111.  x\nd  espe- 
ciall}'  where  an  adequate  remedy  is 
available  through  the  ordinar}' pro- 
cesses, inandamus  does  not  lie. 
Stale««'L  f).  Police.Iury,  29  La.  An. 
146;  State  ex  rel.  v.  Herron,  29  La. 
An.  848.  The  writ  cannot  be  made 
to  have  the  preventive  force  of  an 
injunction,  and  .so  it  is  never  grant- 
ed in  anticipation  of  an  omission  of 
duty,  however  strong  the  presump- 
tion may  be  that  when  the  proper 
time  comes  the  otiicer,  or  person 
against  whom  the  writ  is  desired, 
will  refuse  to  perform  the  duty. 
State  ex  rel.  «.  School  District,  8 
Neb.  93. 

And  so  it  is  not  the  proper  office 
of  a  writ  of  mandamus  to  restrain 
a  party  claiming  to  be  a  public  offi- 
cer from  exercising  the  functions  of 
the  office,  nor  to  enjoin  him  from 
qualifying  for  the  office.  People 
ex  rel.  v.  Ferris,  76  N.  Y.  326.  An 
obligation  arising  from  contract  is 
not  enforceable  by  mandamvs,  even 
in  behalf  of  a  state  itself,  because 
the  proper  remedy  for  breaches  of 
contract  is  an  ordinary  suit  at  law. 
State  V.  Bridae  Co.  20  Kan.  4(i4. 


MANDAMUS.  479 

ate  a  statutory  duty  upon  the  part  of  the  commissioners  to 
provide  suitable  accommodations  off  the  quarantine  prem- 
ises, nor  even  to  erect  new  buildings  within  the  enclosure,  in 
the  absence  of  any  new  legislative  direction, (.s)  It  is  enough, 
however,  that  the  statutory  duty  arises  from  a  fair  and  rea- 
sonable implication,  from  the  terms  of  the  statute,  and  it  needs 
not  to  be  express,  although  the  obligation  tliereon  must  be  a 
complete  legal  ol)ligation.(Y)  In  Oregon  it  was  held  in  a  cer- 
tain case  that  an  ordinance  passed  in  1862,  directing  the  city 
marshal  of  Portland  "to  procure,  at  the  cost  of  the  city,  a 
small-pox  hospital,  tJie  selection  to  he  subject  to  the  approcal  of 
the  committee  on  health  and  police,"  did  not  devolve  on  the 
marshal  a  comjjlete  legal  obligation  or  power  to  procure  such 
hospital,  so  as  to  subject  him  to  a  mandamus  commanding 
him  to  do  so.(u) 

The  obligation  may  be  an  implication  from  a  statute  em- 
powerinrj  a  public  body  or  officer  to  perform  an  act,  on  the 
principle  that  in  matters  which  concern  the  public  interest 
a  power  conferred  by  statute  may  be  enforced  as  a  duty,  not- 
withstanding the  j)ermissive  form  of  the  statutory  provis- 
ion, (v) 

§  478.  But  there  must  be  in  general  a  refusal  on  demand, 
imless,  indeed,  a  statute  makes  the  duty  obligatory  as  a  mat- 
ter of  course,  or  of  routine,  or  as  an  absolute  duty.  And  where 
a  demand  is  made  for  a  specific  performance  of  duty  it  must 
be  absolute,  and  not  trammelled  by  any  condition  wdiich  would 
make  the  refusal  a  qualified  one.  And  so,  where  county  au- 
thorities received  a  conditional  demand  of  railroad  bonds  they 
were  to  issue  to  a  railroad  company,  the  condition  being  that 
the  stock  tendered  to  the  county  autiiorities  should  be  at  once 
transferred  back  to  the  company,  it  was  held  that  the  railroad 
company  could  not  proceed  by  mandamv^  to  compel  the  issu- 
ing of  the  bonds.(?(;)     A  demand  and  refusal  are  necessary  in 

(s)People  t).  Comm'rs,    22   How.  (M)Mayor,  etc.,  «.   Furze,  3  Hill, 

p,.   292.  (N.  Y.)  C14;  K.  R.  ».  Napa  Co.  30 

(OState  V.  11.  R.  18  Minn.  41.  C'al.  A'M. 

(M)Ball    V.    Lappins,   3    Oregon,  (yr).M;u;oupin    Co.    v.    People,   58 

55.  ill-  Ji^3- 


480  MANDAJIUS. 

order  to  eoiistitiite  an  official  breach  of  duty,  and  must,  there- 
fore, be  certain  as  well  as  unconditional  ;(j:;)  although,  if  a  duty 
be  imperatively  commanded  by  law — as,  for  example,  the  levy- 
ing of  a  specific  tax — no  demand  is  necessary. (//) 

§  479.  But  the  obligation  must  be  so  full  as  to  leave  no- 
reasonable  discretion  in  the  officer  as  to  the  performance.  In 
matters  of  discretion  a  iiunidnnius  can  reach  no  further  than 
to  comijel  the  exercise  of  the  discretion — the  results  cannot  be 
guided  or  controlled  thereby ;  in  the  particular  mode  of  the 
exercise  of  the  discretion  the  officer  must  be  left  entirely- 
free  from  coercion  or  restraint. (>)  In  fact,  discretion  ceases- 
to  be  discretion  when  it  is  compelled  by  an  irresistible  author- 
ity to  a  definite  and  prescribed  conclusion. 

The  principle  applies  to  executive  officers,  even  to  land- 
office  registers  and  receivers. (a)  Also  to  jridicial  discretion, 
as  in  issuing  an  inj unction. (^)  And  to  the  board  of  selectmen 
of  a  city,  who  have  the  right  to  judge  conclusively'  of  their  own 
election,  and  of  that  of  their  officers. (c)  Where  a  court 
refuses  to  dismiss  a  bill,  on  the  motion  of  a  complainant^ 
jiuindamiis  cannot  be  resorted  to  to  compel  the  dismissal. 
This  must  be  left  to  the  ordinary  course  of  proceedings  on 
appeal.  (fZ)  Nor  to  vacate  an  order  fur  a  new  trial  where  this, 
has  anything  in  it  whereon  the  judge  must  exercise  his  dis- 
cretion, (r)  Even  where  school  directors  exercise  a  discretion 
unwisel}^  there  is  no  remedy  by  uianda)}rus.(f) 

^  480.  Nor  in  any  case  can  a  writ  supjjly  the  place  of  an 
appeal  or  writ  of  error,  and  not  even  in  regard  to  a  matter 
which  cannot  Ije  appealed  because  of  the  amount  involved  be- 

(*)State  V.  Davis,  17  Minn.  4.S2.  duty  upon  tlie  oflicer.     Keuaercr  v. 

(.y)C()nim"rs  v.  King,  13  Flor.  460.  State,  7  Neb.  130. 

Thus  there  must   l)e  a   i)revious  (slSej^mour  v.  Elj-,  37  Conn.   10(>. 

th-niand    and     refusal     before    tlie  (<7)LitehtieId  v.   Kesrister,  etc.,  & 

proper  officer  will  be  compelled  Ijy  Wall.  577. 

iiuiiidiniuu  lo  e.xecute  a  ta.K  deed.  ('()Mc31illan    v.    Smith,   2G    Ark. 

Bry.son   v.  Spalding,  20   Kan.   427.  (>].">. 

And  so  in  regard  to   other  duties  (f)State  v.  Board,  ete.,  2")  La.  Aiu 

relating  to  the  interest  of  individu-  31(i. 

als,  for  in  all  ca.ses  such  facts  must  ((Z).Jobn8fm's  Case,  2')  Ark.  (jl4. 

be  shown  as  impo.se  the  particular  (fjPeople  v.  .ludge,  17  Mich.  ti7. 

(/)Clark  V.  Directors,  24  la.  266. 


MANDAMUS.  481 

incj  below  the  jurisdiction  of  the  appellate  court.  On  this 
the  supreme  court  of  the  United  States  say:  "Applications 
for  a  mandamus  to  a  subordinate  court  are  warranted  by  the 
principles  and  usages  of  law,  in  cases  where  the  subordinate 
court,  having  jurisdiction  of  a  case,  refuses  to  hear  and  de- 
cide the  controversy,  or  where  such  a  court,  having  heard 
the  cause,  refuses  to  render  a  judgment  or  enter  a  decree 
in  the  ease;  but  the  principles  and  usages  of  law  do  not 
warrant  the  use  of  the  writ  to  re-examine  a  judgment  or 
decree  of  a  subordinate  court,  in  any  case;  nor  will  the 
writ  be  issued  to  direct  what  judgment  or  decree  such  a 
court  shall  render  in  any  pending  case;  nor  will  the  writ 
be  issued  in  any  case  if  the  part}^  aggrieved  may  have  a 
remedy  by  writ  of  error  or  appeal,  as  the  only  office  of 
the  writ,  when  issued  to  a  subordinate  court,  is  to  direct 
the  performance  of  a  ministerial  act,  or  to  act  in  a  case 
where  the  court  has  jurisdiction  and  refuses  to  act;  but  the 
supervisory  court  will  never  prescribe  what  the  decision  of 
the  subordinate  court  shall  be,  nor  interfere  in  any  way  to 
control  the  judgment  or  discretion  of  the  subordinate  court 
in  disposing  of  the  controversy.  *  *  "  *  *  Confess- 
edly, the  petitioners  are  without  remedy,  by  appeal  or  writ 
of  error,  as  the  sum  or  value  in  controversy  is  less  tlian  the 
amount  required  to  give  that  right,  and  it  is  insisted  that 
they  ought,  on  that  account,  to  have  the  remedy  sought  by 
their  petition.  Mandatnus  will  not  lie,  it  is  true,  where  the 
party  may  have  an  appeal  or  writ  of  error,  but  it  is  ecpially 
true  that  it  will  not  lie  in  many  other  cases  whore  the  party 
is  without  remedy  by  appeal  or  writ  of  error.  Such  remedies 
are  not  given,  save  in  patent  and  revenue  cases,  except  when 
the  sum  or  value  exceeds  two  thousand  dollars;  but  the  writ 
of  mandamus  will  not  lie,  in  any  case,  to  a  subordinate  court, 
unless  it  ajDpears  that  the  court  of  whidi  conqjlaint  is  made 
refused  to  act  in  respect  to  a  matter  within  the  jurisdiction 
of  the  court,  and  where  it  is  the  duty  of  the  court  to  act  in 
the  premises,  "(ry)  So,  however  erroneous  the  proceedings  of 
a  court  may  he,  they  cannot  be  reviewed  in  proceedings  for  a 
(i^jNewman's  Case,  14  Wall.  1G5,  168. 

v.l— 31 


482  MANDAMUS. 

niandamus.(h)  And  where  one  is  dispossessed  of  an  office  by 
a  superior  force,  exercised  under  process  irregularly  issued 
by  a  court,  mandamus  will  not  be  available  to  restore  him  to 
the  possession.(i) 

§  481,  An  act  to  be  commanded  by  the  writ  must  be  within 
the  power  of  the  defendant  to  perform,  and  therefore  it  must 
not  embrace  any  element  of  illegality,  (J)  for  it  must  not  only 
be  possible  in  a  natural  sense,  but  legally  possible.  (A:)  And 
so,  where  an  official  act  is  sought  to  be  required  of  one  who  is 
no  longer  an  officer,  a  mandamus  must  be  refused,  since  "its 
issuance  would  be  vain  and  fruitless,  and  could  have  no  ben- 
eficial effect ;"(/)  and  it  is  not  the  business  of  courts  to  send 
out  a  nugatory  writ — a  hrutum  fidmen.  They  always  aim  to 
act  for  the  accomplishment  of  some  just  and  useful  pur- 
pose, (w) 

§  482.  The  courts  vested  with  the  power  to  issue  writs  of 
mandamus  are  usually  only  suj)erior  courts,  of  unlimited  juris- 
diction. The  power  is  rarely,  if  ever,  conferred  upon  inferior 
courts,  whose  jurisdiction  is  limited ;  and  if  it  were  given  to 
such  courts  the  authority  the}'  would  hold  therein  could  only 
be  exercised  as  to  their  inferiors. («) 

§  483.  In  California  and  New  York,  but  I  think  in  no  other 
state,  a  writ  of  mandamus  m.ay  be  sued  out  to  inquire  whether 
a  particular  officer  has  the  power  to  perform  an  act  or  not,  so 
that  if  a  board  of  supervisors  refuse  to  act  on  a  claim  against 
the  county,  for  the  reason  that  they  have  not  the  power  to  ap- 
prove of  it,  mandamus  is  the  action  to  determine  whether  they 
<lo  or  do  not  possess  such  power. (o)  The  general  rule  is  that 
that  there  must  be  a  refusal  to  perform  a  plain  duty. 

§  484.  Most  generally  the  issuing  of  a  writ  directly  from 
an  appellate  court  is  in  aid  of  its  appellate  jurisdiction. (i?) 

,(^)Be,^■lluI  V.  Swan,  39  Cal.  411.  {m)Boozer.  Humhird,  liH  31d.  4. 

'{«)Alleu   V.    Robinson,    17   IMiun.  (yt)School   Inspectors  v.   People, 

li;j.  2U  111.  53U. 

(;)Butler  e.  Supervisors,  26  Mich.  (^y)  People  v.  Supervisors,  28  Cal. 

23.  43(1;  People  f>.  Supervisors,  24  How. 

(A;)State  v.  Perrine,  34  N.  ,J.  2.')7.  Pr.  119. 

(i)McGuLre  v.  Waterman,  5  Nev.  (p)Westl)rook   v.    Wicks,   3l)    la. 

328.  382;  State  v.  Elmore,  6  Cold.  531. 


MANDAMUS.  483 

Usually,  I  suppose,  the  decision  of  a  lower  court  in  relation 
to  the  granting  of  a  mandamus  is  itself  reviewable;  but  in  no 
case  will  an  appellate  court  issue  a  mandamus  to  reverse  the 
judgment  of  a  court  refusing  a  mandamus. (q)  The  remedy  is 
by  appeal  direct. 

§  485,  A  writ  of  mandamus  is  not  available  in  reference  to 
mere  obligations  arising  from  contract  involving  no  office, 
trust,  or  station,  partly  for  the  reason  that  the  legal  remedies 
are  adequate  to  such  obligations. (r) 

§  4S0.  As  to  the  power  of  issuing  a  m((nd(unus  to  state 
executive  officers,  this  was  partially  discussed  in  the  chapter 
€n  Constitutional  Limitations,  in  the  first  part  of  this  work, 
and  we  shall  not  long  delay  on  it  here.  The  general  jDrinci- 
ple  in  regard  to  a  governor  is  that  in  the  exercise  of  the 
supreme  executive  power  of  the  state  he  must  have  an  official 
discretion,  necessarily  uncontrollable  by  judicial  pow'er:  yet 
in  regard  to  a  mere  ministerial  act,  which  might  have  been 
enjoined  upon  any  other  officer,  and  which  alfucts  any  spe- 
cific private  right,  he  may  be  held  amenable  to  a  mandamus, 
(.s)  although  courts  will  but  hesitatingly  grant  a  writ  against 
him,  and  that  in  a  case,  probably,  of  extraordinary  emer- 
gency only.  It  is  held  that  "it  is  not  by  the  office  of  the  per- 
son to  whom  the  writ  is  directed,  but  the  nature  of  the  thing  to 
be  done,  that  the  propriety  or  impropriety  of  issuing  a  mandamus 
is  to  be  determined. "(D  A  governor  cannot  be  commanded 
even  to  exercise  his  political  discretion,  however.  But,  where 
he  has  no  discretion  as  to  performing  a  ministerial  act,  the 
act  is,  of  course,  compellable  by  mandamus;  as  w^herc  his  duty 
is  to  sign  acommissiou(»)  or  apateiit(r)  absoluiely. 

A  writ  will  not  lie  against  a  governor  to  compel  him  to 
return  a  bill  to  the  secretary  of  state,  which,  being  passed  by 
the  legislature,  was  put  into  his  hands  for  consider.itioii.  and 
which,  as  alleged,  has  not  l)een  returned  to  the  proper  house, 

(ry)l)c  (Jroot's  Cmsc,  C  Wall.  407.  (/)Marl»iiry  v.  Madi.soii,  I  t:riiiuli, 

(/•)Stato  V.  Tuniinkc,    Ki   O.   f^l.      ITd. 
3IY  (-MlMauriidcr    f.    Swaiin.    -''    Mil. 

(sjSUite  V.  Chaso,  f)  O.  Si.  53.-).  2U7;  Grooinc  o.  Gwiiui,  4;j  .Md.  aTL 

^?;).Mid(llctoii  ».  Low,  30  Cal.  5'J!). 


484  MANDAMUS, 

\vithin  the  time  limited  by  the  constitution,  with  his  objec- 
tions. (?/•) 

It  has  been  held  that  where  a  person  charged  with  crime 
tlees  to  another  state,  and  a  demand  is  made  in  due  form  for 
his  extradition,  there  is  no  power  in  the  United  States  gov- 
ernment to  coerce  the  surrender,  notwithstanding  it  is  a  mereh^ 
ministerial  act,  and  the  United  States  statute  says  expressly 
"it  shall  be  the  duty"  of  the  executive,  on  a  requisition,  to 
make  the  surrender.  The  supreme  court  of  the  United  States 
say  hereon:  "The  demand  being  thus  made,  the  act  of  con- 
gress declares  that  'it  shall  be  the  duty  of  the  executive 
authority  of  the  state  to  cause  the  fugitive  to  be  arrested  and 
secured,  and  delivered  to  the  agent  of  the  demanding  state.* 
The  words  'it  shall  be  the  duty,'  in  ordinary  legislation,  im- 
ply the  assertion  of  the  power  to  command  and  coerce  obedi- 
ence. But,  looking  to  the  subject-matter  of  this  law,  and  the 
relations  which  the  United  States  and  the  several  states  bear 
to  each  other,  the  court  is  of  ojiinion  the  words  'it  shall  be 
the  dut}^'  were  not  used  as  mandatory  or  compulsorj^,  but  as 
declaratory  of  the  moral  duty  which  this  compact  created 
when  congress  had  provided  the  mode  for  carrying  it  into  exe- 
cution. The  act  does  not  j^rovide  any  means  to  compel  the 
execution  of  this  duty,  nor  inflict  any  punishment  for  neglect 
or  refusal  on  the  part  of  the  executive  of  the  state ;  nor  is 
there  any  clause  or  provision  in  the  constitution  which  arms 
the  government  of  the  United  States  with  this  power.  Indeed, 
such  a  power  would  place  ever}'  state  under  the  control  and 
dominion  of  the  general  government,  even  in  the  administra- 
tion of  its  internal  concerns  and  reserved  rights.  And  we 
think  it  clear  that  that  the  federal  government,  under  the  con- 
stitution, has  no  power  to  impose  on  a  state  officer,  as  such, 
any  duty  whatever,  and  compel  him  to  perform  it.  For.  if  it 
possessed  this  power,  it  might  overload  the  officer  with  duties 
which  would  fill  up  all  his  time  and  disable  him  from  i)er- 
forming  his  obligations  to  the  state,  and  might  impose  on  him 
duties  of  a  character  incompatible  with  the  rank  and  dignity 

((c)People  V.  Yates,  40  111.  12G. 


MANDAMUS.  48"") 

to  which  he  was  elevated  by  the  state.  It  is  true  that  con- 
gress may  authorize  a  particular  state  officer  to  perform  a 
particular  duty,  but  if  he  declines  to  do  so  it  does  not  fol- 
low that  he  may  be  coerced  or  punished  for  his  refusal.  And 
we  are  very  far  from  supposing  that  in  using  this  word  'duty" 
the  statesmen  who  framed  and  passed  the  law,  or  the  presi- 
dent who  apjjroved  and  signed  it,  intended  to  exercise  a 
coercive  power  over  state  officers  not  warranted  by  the  con- 
stitution. But  the  general  government  having,  in  that  law, 
fulfilled  the  duty  devolved  upon  it  by  prescribing  the  proof 
and  mode  of  authentication  upon  which  the  state  authorities 
were  bound  to  deliver  the  fugitive,  the  word  'duty,'  in  the  law, 
points  to  the  obligation  on  the  state  to  carry  it  into  execution. 
******  jj.  ^ould  seem  that  when  the  constitu- 
tion was  framed,  and  when  this  law  was  passed,  it  was  confi- 
dently believed  that  a  sense  of  justice  and  of  mutual  interest 
would  insure  a  faithful  execution  of  this  constitutional  provis- 
ion by  the  executive  of  every  state ;  for  every  state  had  an 
equal  interest  in  the  execution  of  a  compact  absohitely  essen- 
tial to  the  peace  and  well-being  in  their  internal  concerns,  as 
well  as  members  of  the  Union.  Hence,  the  use  of  the  words 
ordinarily  employed,  when  an  undoubted  obligation  is  required 
to  be  performed,  '  it  shall  be  his  duty.'  But,  if  the  governor  of 
Ohio  refuses  to  discharge  this  duty,  there  is  no  power  dele- 
gated to  the  general  government,  either  through  the  judicial 
department  or  any  other  department,  to  use  any  coercive 
means  to  compel  liim."(.r) 

i^  4S7.  A  state  treasurer  is,  of  course,  liable  to  niaiKhiniiis 
in  the  performance  of  his  ministerial  duties  in  paying  out 
money,  but  the  writ  cannot  be  invoked,  by  a  creditor  of  the 
state,  to  compel  him  to  make  a  certain  distribution  of  funds, 
not  yet  in  his  hands,  but  to  be  thereafter  received. (//)  He 
may  be  required  to  countersign  warrants  on  state  contracts, 
even  where  there  is  no  money  in  the  treasury;  and  the  audi- 
tor to  issue  them.(^)     Bat  in  Texas  the  executive  officers  are 

(;/•)  Kentucky  w.  Governor,  24 1  low.  (//)Sliite  ♦;.  Duhiu-Ict,  24  Lu.  An. 

1(N_11(I.  T' 

(j)Poople  V.  Scc'y  of  Slate,  58  111.  'Jl. 


486  MANDAMUS. 

held  not  to  be  subject  to  the  judicial  power,  iu  any  way,  aa 
to  their  management  of  the  fiscal  affairs  of  the  state,  etc. (a) 

§  -1:88.  In  Kansas  it  is  held  that  a  secretary  of  state  is 
compellable  to  issue  a  certificate  of  election  to  a  candidate 
chosen,  on  a  due  authentication  of  his  claim  to  the  office. (i') 
And  so,  in  Illinois,  a  clerk  may  be  compelled  to  answer  to  a 
manchfutii.s  in  regard  to  issuing  a  certificate  of  election,  and  it 
is  no  answer  that  he  had  already  issued  a  certificate  to  the 
relator's  competitor,  who  on  the  certificate  had  been  reg- 
ularly commissioned  by  the  governor.  A  peremptory -ma;?- 
dnmiis  will  issue,  not  to  oust  the  incumbent  from  the  ofiice, 
but  simpl}'  to  compel  the  issuing  of  another  contradictory  cer- 
tificate, leaving  the  clerk  and  the  party  to  extricate  them- 
selves as  best  they  ma}'  from  the  entanglement. (c) 

§  489.  A  writ  of  inandainiis  may  be  issued  to  an  inferior 
court,  and  it  is  then  the  duty  of  the  latter  to  render  implicit 
obedience, ((0  although,  as  before  stated,  its  proper  discretion 
cannot  be  interfered  with;  but  in  everything  which  parties 
have  a  right  to  demand,  such  as  issuing  process,  hearing  the 
cause,  rendering  judgment,  etc.,  a  niaii(l(tinu>i  may  be  brought 
to  enforce  duty.  While  a  writ  cannot  be  used  to  compel  a 
judge  to  vacate  an  order  (e)  from  which  an  appeal  may  be 
taken,  and  generally  even  where  an  appeal  may  not  be  taken, 
yet,  on  the  other  hand,  it  can  be  employed  to  compel  him  to 
make  an  order  in  the  progress  of  a  cause, (/)  or  a  final  de- 
cision,(9)  or  to  receive  and  enter  a  verdict, (/t)  or  tore-instate 
a  cross-bill  dismissed  improperly  before  the  final  hearing  of 
a  chancery  cause. (i)  Where  an  appeal  has,  as  alleged,  been 
improperly  dismissed  by  an  inferior  court,  iihindamus  will 
not  lie  to  compel  its  re-instatement  and  a  hearing, (J)  nor  to 
correct  an  erroneous  judgment, (A)  nor  to  force  the  recall  of 

(^')H.  K.  Cu  7!.  Haii(lolpl).  24  T(;.\.  (.^jCowan  v.  Doddri(i.?e,  22  Gratt. 

.•32;i.  4;-)'.). 

(6)State  «).  Lawrence,  3  Kan.  95.  (/(}Munkors   v.   Watson,    9    Kau. 

(c)Peop]e  V.  Ives,  27  111.  247.  071. 

(r/)Morris  and  .Johnson's  Case,  9  (?)Thornton"s  Case,  46  Ala.  3S5. 

Wall.  607.  (j)People  e.  Weston,  28  Cal.  640. 

(()State».  Taylor,  19  Wis.  560.  (/.-jCariaga    v.    Dryden,     29   Cal. 

(/llbid,  531.  308. 


MANDAMUS.  487 

an  appealable  order  made  after  judgment, (7)  nor  to  issue  an 
injunction, (///)  nor  to  require  a  judgment  of  acquittal  in  a 
criminal  case,(/i)  or  the  setting  aside  of  a  judgment  entered 
improperly  at  a  subsequent  term,(o)  or  rectify  refusal  in  a 
pending  case  to  discharge  a  garnishee, (/>) 

In  Alabama  an  order  granting  a  new  trial  may  be  set 
aside  by  means  of  a  mandavn<s.(q)  And  in  Michigan  a  judg- 
ment rendered  without  notice  or  appearance. (;•)  In  Califor- 
nia it  is  held  to  be  the  proper  writ  to  compel  the  holding  of 
courts  at  the  county  seat,  where  there  is  a  contested  removal 
of  the  county  seat.(s) 

It  is  held  that  the  writ  is  also  a  proper  mode  of  compelling 
a  court  to  recognize  one  as  an  attorney. (0  The  supreme 
court  has  the  right  to  issue  a  mandamns  to  compel  a  judge  to 
sign  a  bill  of  exceptions,  although  the  judge  must  still  be  the 
exclusive  judge  of  its  correctness,  and  he  cannot  be  compelled 
to  sign  it  if  he  believes  that  it  does  not  contain  the  truth,  and 
affidavits  to  the  contrary  will  not  be  received  to  justify  the 
issuance  of  the  writ.  All  that  can  be  done  is  to  receive  a 
return  on  an  alternative  writ,  or  on  a  rule  to  show  cause,  and 
if  the  judge  shows  for  cause  that  the  particular  bill  in  ques- 
tion is  incorrect  it  ends  the  matter. (it) 

§  490.  It  is  not  proper  to  issue  a  writ  of  inandanuiH  to  com- 
pel a  railroad  company  to  condemn  the  land  they  occupy. 
In  a  certain  case  it  was  said  by  the  court:  "It  is  contended 
by  the  appellees  that  the  rightful  remedy  in  this  case  is  l)y 
uudidamus,  to  compel  the  corporation  to  condemn  the  land. 
They  urge,  in  effect,  that  the  owner  of  the  land  must  take 
the  initiative,  when,  by  the  statute,  the  corporation  must, 
in  such  case,  be  the  actor.  The  owner  having  no  duty  to 
perform,  he  is  passive.  It  is  not  denied  that  iikukI'Diuis  v.ill 
lie  to  compel  railroad   corporations  to  perform  a   duty   eii- 

(;)People ».  Moore,  Id.  42S.  (^'jPcopIe     v.     Wnnni.     \^    Mi.li 

(m)St;ite  «.  Wilson,  49  Mo.  148.  247. 

(«,)Ciige's  Case,  4')  Cal.  248.  /.•()CaIavfra.s  ("o.  »).  IJrockway,  .'{i* 

(o)Morris'  Ca.se,  4(5  Ala.  361.  Cal.  ;j:J2. 

(;;)E.\  parte  K.  K.  46  Ala.  654.  (OP(;oplo  v.  lltilletl,  1  Cal.  :iyz. 

(f/)Hatchett  v.  Milner,  44  Ala.  (M)People  v.  .Jameson,  40  111.  !tG. 
224,  274. 


488  MANDAMUS. 

joined  upon  tliem  by  statute,  but  it  can  hardly  be  said  this  is 
one  of  them.  It  is  not  the  duty  of  a  railroad  corporation, 
after  having  obtained  possession  of  land  for  their  track,  and 
using  it  for  their  purposes,  to  institute  proceedings  to  con- 
demn the  land.  It  was  their  right  and  their  duty,  in  the  lirst 
instance,  before  constructing  their  road,  to  institute  the 
proper  proceedings.  They  were  required  and  were  bound  to 
take  the  initiative.  No  burden  is  thrown  upon  the  owner  of 
the  land  by  the  law.  Whilst  mandamus  is  the  proj^er  remedy, 
in  many  cases,  against  such  corporation,  this  is  not  one  of 
them.  Here  the  corporation  Jiad,  without  authority  of  law, 
taken  possession  of  appellant's  land,  and  the  question  is,  shall 
they  be  allowed  to  rob  appellant  at  defiance,  and  comjDel  him 
to  institute  proceedings  by  which  he  is  to  be  deprived  of  his 
land?  Two  remedies,  it  seems  to  us,  were  open  to  appellant 
— this  action  of  ejectment,  or  an  action  to  recover  the  value 
of  the  land  taken.  He  has  resorted  to  the  first,  and  we  are 
unable  to  see  why  he  should  not  recover,  "(r) 

§  401.  Where  the  legislature  of  Michigan  passed  an  act 
establishing  a  homoeopathic  professorship  of  medicine  in  the 
state  university  at  Ann  Arbor,  and  the  regents  of  the  univer- 
sity evaded  the  law  for  eleven  years,  claiming  the  law  to  be 
unconstitutional,  as  tending  to  produce  antagonism  and  con- 
fusion, as  they  had  "provided  professors  for  the  medical  de- 
partment, under  a  system  which  had  been  in  successful  op- 
eration many  years,"  the  court,  on  a  mandamus  to  compel  the 
auditor  to  grant  the  warrant  for  the  necessary  funds  to  carry 
out  the  requirements  of  the  law,  were  divided — a  majority  be- 
ing in  favor  of  refusing  the  writ,  on  the  ground  that  "a  man- 
damus, though  a  prerogative  writ,  is  demandable  of  right  in 
a  proper  case,  yet  it  is  only  to  be  granted  by  the  court  in  the 
exercise  of  a  sound  legal  discretion,  and  hence  ought  only  to 
be  invoked  in  cases  of  the  last  necessity.  This  necessity  we 
have  been  unable  clearly  to  discover  in  this  case.  The  board 
of  regents  have  a  sound  discretion  to  exercise,  and,  until  it  is 
made  apparent  that  they  seek  to  evade  the  law  by  unneces- 
sary and  wilful  delays,  the  exercise  of  our  discretionary 
(«)Smitli  V.  K.  K.  67  111.  195. 


MANDAMUS.  489 

power  cannot  be  called  into  action."  The  minority,  however, 
of  the  court  regarded  the  regents  as  not  endowed  with  the  dis- 
cretion they  had  exercised — namely,  of  locating  the  homceo- 
pathic  school  outside  of  Ann  Arbor, — and  were  favorable  to  the 
issuing  of  the  writ  to  the  auditor  to  compel  the  issuing  of  the 
Avarrant  on  the  state  treasury  for  the  fund  provided  by  the 
legislature  for  the  establishment  of  such  professorship. (/r) 

§  4i)2.  In  Illinois  it  is  held  that  where  a  circuit  judge 
lias  refused  an  application  for  the  writ  of  injunction  which 
runs  throughout  the  state  when  issued,  and  indorsed  his  re- 
fusal upon  the  bill,  it  is  merely  a  question  of  courtesy  with 
another  judge,  to  whom  application  is  subsequently  made, 
whether  he  will  look  into  the  case  and  allow  the  injunction. 
If  he  takes  cognizance  of  it  he  is  not  to  be  controlled  by  the 
prior  decision  of  the  other  judge,  but  is  to  judge  it  for  himself; 
and  if  he  grants  it  the  former  judge  has  no  power  to  vacate 
the  order  awarding  the  writ.  The  judge  awarding  may  punish 
the  clerk,  in  the  county  where  the  application  was  first  made, 
for  contempt,  if  he  refuses  to  issue  the  writ  of  injunction,  but 
he  cannot  issue  a  )n'indamns,  since  a  inandaDuifi  cannot  be 
made  to  operate  beyond  the  limits  of  the  circuit  wherein  it  is 
issued.  (;r) 

§  493.  A  school  teacher,  who  has  complied  with  the  require- 
ments of  the  school  law,  and  is  refused  compensation  out  of 
the  special  fund  provided  for  payment  of  such  services,  is  en- 
titled to  a  vmndamiis  to  compel  the  proper  officers  to  perform 
their  duty  and  make  payment  of  wha'  is  justly  due.(//) 

§  494.  As  to  making  public  improvements,  issuing  public 
1i)onds  therefor,  and  paying  them,  mmidamns  has  a  very  a])- 
propriate  and  important  sphere  to  till.  Thus  it  is  the  proper 
remedy  to  compel  a  municipal  corporation  to  erect,  maintani, 
and  kee])  in  repair  bridges  provided  by  statute;  and  where 
such  bridges  are  over  a  navigable  stream,  or  a  canal,  to  com- 
pel the  corporation  to  tend  tlie  necessary  draw  for  the  pas- 
sage of  boats  and  of  passengers  l)y  land ;  at  least,  where  the 
act  prescribes  no  remedy  for  the  refusal  of  the  municipality 

(^)Pcoplc   V.  Auditor,   17  3Iicb.  (.r)W,.l,l.  v.  Byrns.  .1^  UV-l'l 

^^^'  (^)Ai.-ar  «.  Trusters,  34  N.. J.. 300. 


400  MANDAMUS. 

to  take  care  of  the  bridges,  and  it  is  of  great  public  impor- 
tance that  they  should  be  properly  kept  up. (2')  And,  also,  it 
is  the  proper  remedy  whereby  commissioners  can  compel  the 
rannicipality  to  provide  means  for  the  erection,  etc.,  of  the 
bridges  to  be  built. (<i) 

Also,  to  compel  a  mayor,  or  such  like  officer,  to  sign  bonds 
under  an  act  to  supply  a  city  or  village  with  water ;(/;)  or  to 
compel  a  treasurer  holding  bonds,  signed  and  ready  to  be  de- 
livered, to  deliver  them  to  a  board  of  commissioners. (c) 

And  so  niandamvs  lies  to  compel  the  issuing  of  county  bonds 
in  payment  of  a  duly  authorized  subscription  to  the  capital 
stock  of  a  corporation,  as  a  railroad  company, (rf)  although  it 
has  been  held  that  a  mere  public  vote  authorizing  such  sub- 
scription, upon  conditions  which  are  afterwards  complied  with 
by  the  comj^any,  does  not,  of  itself,  constitute  such  a  contract 
as  can  be  thus  enforced,  and  that  the  comity  is  not  bound  to 
issue  the  bonds,  upon  tender  of  the  stock  by  the  company,  un- 
less there  has  been  an  actual  subscription  made  by  the  county 
authorities  upon  the  vote,  or  at  least  an  express  contract  to 
make  such  subscription. (e)  And  a  mandamus  may  be  directed 
to  a  city  council  to  issue  stock,  or  pass  the  necessary  ordinance 
to  create  stock,  for  building  a  public  market  authorized  by  the 
legislature. (/)  But  in  all  such  cases  it  is  a  proper  return  to 
a  mandamus  that  the  necessary  consent  of  the  tax  payers  had 
not  been  given  for  the  issuing  of  the  bonds. (^f)  And  where 
a  legislative  act  authorizes  a  town  to  issue  bonds  for  the  con- 
structing of  a  railroad,  the  power  to  be  exercised  on  the  con- 
dition of  a  written  consent  of  a  majority  of  the  tax  payers 
owning  more  than  half  the  taxable  property,  to  be  proved  by 
the  assessors'  affidavit,  and  where  it  is  expressly  made  the 
duty  of  the  assessors  to  make  the  affidavit  when  the  neces- 
sary consent  has  been  obtained,  and  yet  the  assessors  refuse,  a 

(2)City   of   Ottawa   v.  People,  58  {d)li.    K.    v.    Comm'rs,   12   Kan. 

111.  240.  135. 

(rt) Comm'rs    «.    Philadelphia,    3  {e)U.  R.  v.  Comm'rs,  6  Kan.  268. 

Brewst.  597.  (/)People  v.  New  York,  45  Barb. 

(6)People  V.  White,  54  Barb.  623.  475. 

(r-)Pearsons  v.  Kanlett,  110  Mass.  (^)People  v.  Mead,  36  N.  Y.  224. 
123. 


MANDAMUS.  491 

jiiandamus  will  not  lie  to  compel  the  affidavit  to  be  made,  how- 
ever clearly  it  may  appear  to  the  court  that  the  prescribed 
consent  has  been  given,  because  this  is  to  be  the  result  of  the 
assessors'  judgment  as  to  the  consent,  not  only  whether  the 
number  is  a  majority,  but  also  whether  it  represents  more 
than  one-half  of  the  taxable  projierty ;  but  it  will  lie  to  com- 
pel the  assessors  to  proceed  to  examine  the  evidences  of  the 
consent  and  to  determine  the  fact,  and,  if  they  decide  that  the 
requisite  consent  has  been  obtained,  then  to  make  affidavit  in 
accordance  with  their  decision.  They  will  not,  hereon,  be 
required  to  determine  in  any  particular  manner,  and  then 
make  affidavit  upon  such  specific  enforced  decision. (/<) 

By  mandamus  the  assessment  of  taxes  may  be  compelled, 
either  in  the  ordinary  assessing,  as  of  lands, (I)  or  to  pay  pul)- 
lic  debts,  general  or  special.  And  the  United  States  circuit 
courts  have  authority  to  issue  a  mandate  requiring  state  or 
municipal  officers  to  levy  and  collect  a  tax,  although  it  seems 
ihat,  if  the  officer  then  will  not  or  cannot  obey,  the  court 
will  simply  appoint  its  own  marshal  to  perform  the  act.(j) 
And  where  a  judgment  has  been  rendered  against  a  munic- 
ipal corporation,  and  execution  returned  unsatisfied,  ))iiin- 
(lamus,  and  not  a  bill  in  equity,  is  the  proper  remedy  to  com- 
pel the  levy  of  a  tax,  which  the  corporation  is  boimd  to  levy 
to  pay  the  judgment. (A:)  Nor  is  it  any  answer  to  a  iiian- 
damus  that  the  respondents  had  been  enjoined  by  a  state 
court  from  rendering  obedience  to  the  command ;(/)  nor  that 
the  total  revenue  is  expended  in  defraying  current  expenses, 
for  this  is  not  an  excuse  for  making  no  provision  for  matur- 
ing debts. (.'«)  The  execution  of  a  inaiuhniius  cannot  l)e  law- 
fully thwarted  or  interfered  with  by  the  state  courts  agjiinst 
a  United  States  court,  and  the  latter  will  appoint  its  marshal 
to  execute  the  writ,  whenever  municipal  olidcers  will  not.  or 
because  of  public  excitement,  combinations,  or  suits  in  state 

(/Ollowland  v.  El(lri(l-e,  43  N.  Y.  (A;)Walkley  v.  City  -r  M...r:,.i.w, 

4r,()  6  Wall.  4S1. 

(/)Peoplo  V.  Shearer,  30  Cal.  (Uf..  (/)U.  S.  v.  Leo  Co.  2  Bl.^s.  77. 

(j)V.  S.  V.  Muscatine  Co.  2  Abb.  {m}\J.  S.  v.  City  of  Sterling,  Id. 

(U.  S.)  54.  404. 


4!»2  MANDAMUS. 

courts,  cannot,  execute  a  command  to  collect  taxes.  And  this 
is  a  duty  imperatively  binding  on  the  court,  whenever  the 
necessity  exists  for  its  j)erformance,  from  such  circumstan- 
ces ;(n)  and  even  where  the  municipalit}'  has  no  officers,  but 
refuses  to  elect  any,  the  necessity  exists  and  the  authority 
will  be  exercised,  (o) 

Where  a  statute  creates  a  board  of  education,  to  estimate 
the  sums  necessary  to  carr}"  on  public  schools  in  the  munic- 
ipal corporation,  and  requires  the  trustees  to  collect  the 
sums  by  taxation,  in  the  usual  manner,  when  notified  by  the 
board,  the  trustees,  on  refusal,  can  be  compelled  to  comply 
with  the  requisition  bj"  viandaniiis.Q)) 

A  mandamus  will  lie  to  compel  auditors,  at  their  regular 
meeting,  to  audit  a  relator's  claim  to  a  military  bounty,  but 
not  to  compel  them  to  meet  expressly  for  this  purpose. {5) 
Also  the  payment  of  authorized  military  bounties  may  be 
enforced  by  mandamus. (r)  But  in  Alabama  it  has  been  held 
that  an  application  will  be  denied  for  a  writ  to  require  county 
commissioners  to  provide  a  fund  by  taxation,  or  otherwise, 
in  order  to  pay  debts  contracted  during  the  rebellion,  to  feed 
and  support  the  families  of  confederate  soldiers,  partly  on  the 
ground  that  these  are  war  debts,  and  therefore  void  by  ordi- 
nance 37  of  the  convention  of  1S67,  and  partly  because  the}^ 
are  void  as  contracted  in  violation  of  the  laws  and  policy 
of  the  United  States,  (s) 

In  Florida  it  has  been  held  that  where  an  officer's  salary 
has  been  provided  by  law  niandainus  will  lie  to  compel  its 
payment,  this  being  a  ministerial  act  merely,  and  the  court 
may  in  such  proceeding  determine  whether  the  officer's  ap- 
pointment is  void,  where  there  is  no  other  incumbent  exercis- 
ing its  functions  by  color  of  right. (/)  But  in  New  York  it  is 
held  that  an  officer  de  Jure  cannot  have  a  mandamus  to  com- 

(n)Lansing  v.  Treasurer,  1  Dillon,  (/•jEichelberger  v.  Sifferd,  27  Md. 

526.  32s. 

(o)Welcli«.  St.  Genevieve.  Id.  133.  (.•(jBibb  v.  Comm'rs,  44  Ala.  121, 

(/j)Peoplef;.  Bennett,  54 Barb.  481.  (Saf'old,  J.,  dissenting.) 

(9)People   V.   Auditors,   53   Barb.  (<)State  «.  Gamble,  13  Flor.  13. 

557. 


MANDAMUS.  493 

pel  the  payment  of  his  salary,  when  it  has  been  paid  to  a  de 
facto  officer  in  possession,  on  the  grounds  that  the  writ  does 
not  issue  in  matters  of  doubtful  right,  and  that  the  relator 
has  another  legal  remedy  in  such  case.(M) 

In  Wisconsin  it  is  held  that  where  a  county  board,  in 
settling  with  a  treasurer,  refuses  to  give  him  credit  for  money 
expended  according  to  law,  he  cannot  have  a  mandamus  to 
compel  the  allowance  of  the  credits,  because  he  has  a  right 
to  appeal,  and  it  makes  no  difference  that  the  time  for  appeal- 
ing has  passed.  But  one  of  the  judges  dissented  in  the  case, 
on  the  ground  that  the  treasurer  has  no  right  of  appeal  in 
such  case.(?') 

In  California  an  auditor  who  refuses  to  issue  a  county  war- 
rant, when  so  ordered  by  the  board  of  supervisors,  can  be 
compelled  by  a  writ  to  do  so,  for  the  reason,  as  held,  that 
an  action  on  the  auditor's  official  bond  is  not  a  "plain,  speedy, 
and  adequate  remedy,  "'(?t;) 

Where  the  legislature  has  "authorized  and  empowered"  a 
board  of  supervisors  to  cause  the  refunding  of  illegal  taxes, 
j)aid  into  the  treasury,  on  proper  proofs  by  the  claimants, 
and  they  decide  that,  in  justice,  the  county  and  the  towns 
which  had  received  the  taxes  could  not  refuiul  them,  and 
therefore  disallow  claims  thereto,  they  are  compellable  by  ina7i- 
damiis  to  perform  this  duty,  so  enjoined  by  law,(i-) 

A  mandamiiH  only  lies  to  enforce  a  present  and  not  a  future 
duty,  and  so,  where  warrants  are  made  payable  out  of  a  par- 
ticular fund,  which  is  exhausted,  an  officer  cannot  be  com- 
manded to  pay  warrants  out  of  money  that  may  thereafter 
come  into  the  fund.(?/) 

Where  a  state  constitution  provides  that  no  money  can  be 
drawn  from  the  treasury,  except  by  warrant  from  the  gov- 
ernor and  pursuant  to  api>ropriiiti()ns  made  by  law,  these 
conditions  must  be  strictly  fulhiled,  under  all  circuinKtances, 

(«)People   V.    IJreiinan,   4")    W.xrh.  (/pjJ5:il)c()ck   t).   (^todricli,  47  Cul. 

458.  •■>"'^- 

(B)State   V.  Supervisors,  2fi   Wis.  (,c)P<'opl(' «.  Supervisors,  .0:j  liarb. 

81.  ■"''!"■ 

.y)])ay  f).  Oillow,  :5lt  ('••il.  50G. 


494  MANDAMDS. 

before  a  mandamus  can  lie  to  order  the  payment  of  money; 
and  a  mere  contract  of  the  governor  and  council,  under  a 
resolve  of  the  legislature,  to  establish  the  compensation  of  a 
state  agent  or  commissioner,  is  not  an  appropriation. (^) 

A  court  cannot  interfere  with  the  discretion  of  a  municipal 
corporation  in  regard  to  public  improvements:  as,  for  instance, 
it  cannot  review,  b}'  mandamus,  a  refusal  of  the  common 
council  of  a  city  to  cause  an  improvement  to  be  made  in  the 
streets,  and  paid  for  out  of  the  general  funds,  against  their 
judgment  of  its  expediency. (a) 

§  49.3.  Where  a  ferry  company  are  entitled  to  collect  such 
tolls  as  a  mayor  and  aldermen  may  determine,  according  to 
certain  regulations  prescribed  by  statute,  and  are  entitled  to 
have  new  rates  established  when  existing  rates  do  not  pro- 
duce a  certain  sum,  and  where  application  is  made  b}'  the 
company  to  the  mayor  and  aldermen  for  new  rates,  accom- 
panied by  proofs  of  the  insufficiency  of  the  present,  and  the 
mayor  and  aldermen  refuse  to  act  thereon,  mainlainxs  lies  to 
compel  their  action. (/>) 

§  496.  As  to  private  corporations,  a  writ  will  lie  to  require 
a  railroad  company  to  grade  their  track  within  the  limits  of 
a  city  so  as  not  to  obstruct  needle  sly  the  streets  and  al- 
leys, (c)  Also  to  require  the  deliver}-  of  grain  in  bulk  to  a 
particular  elevator  to  which  the  grain  had  been  consigned 
along  the  route.  And  in  such  a  case  it  is  no  answer  that  the 
company  had  so  refused  to  deliver  it  because  it  could  not  do 
so  without  great  additional  expense,  nor  that  it  had  entered 
into  special  contracts  with  owners  of  other  elevators  for  ex- 
clusive delivery  to  them ;  nor  that,  under  its  charter,  it  had  a 
right  to  establish  its  own  rules  and  regulations,  and  so  had 
never  held  itself  out  as  a  carrier  of  grain  in  bulk,  except  on 
the  condition  that  it  should  choose  the  consignee,  and  that 
this  had  become  a  custom  and  usage  of  its  business,  so  that 
it  could  not  be  required  to  go  beyond  this  limit ;  these  excuses 

(£)Weston  e.  Dane,  .51  Mi-.  4li3.  {h)Fen-y  Co.  v.  Boston.  101  ^lass. 

(^O^Iichigiin   City   v.  Roberts,  34      4!'l. 
Ind.  472.  (r)R.  11.  v.  Lawrencelmrjr.  lu  Ind. 

489. 


MANDAMUS.  4<»5 

.all  being  in  contravention  of  its  duties  cas  a  common  car- 
rier, which  require  it  to  avoid  all  contracts,  and  all  rules  and 
regulations,  which  make  injurious  and  arbitrary  discrimina- 
tions between  individuals.  (tZ) 

Where  one  subscribes  to  the  stock  of  a  corporation,  on  the 
condition  in  part  that  he  should  receive  a  life  pass  over  the 
road  for  himself  and  family,  he  cannot  bring  a  writ  to  com- 
pel the  issuing  of  the  pass  while  any  part  of  the  subscription 
remains  unpaid,  even  if  he  can  do  so  on  a  full  payment. 
And  it  has  been  held,  also,  that  in  snch  a  case,  the  subscrip- 
tion being  in  writing,  parol  evidence  of  the  agreement  to  issue 
the  pass  is  not  admissible,  (e) 

Transfers  of  stock,  when  refused,  are  enforceable  by  man- 
damus, even  if  the  demand  is  made  by  letter,(/)  but  not 
where  there  has  already  been  a  transfer  to  another  than  the 
relator,  j^rima  facie  regular,  even  if  there  is  reason  to  doubt 
whether  the  transfer  was  not  made  to  defraud  creditors.  (//) 
And  a  gas  company,  as  well  as  other  corporations,  can  be 
compelled  by  writ  to  issue  certificates  of  stock  to  the  owners 
thereof,  unless  there  is  a  dispute  as  to  the  ownership. (/<)  And 
not  only  so,  but  a  writ  will  be  granted  to  require  a  company 
to  furnish  gas  to  persons  having  a  right  to  receive  it  on 
offering  to  comply  with  the  usual  terms.  But  it  is  a  sufficient 
excuse  that  the  applicant  is  already  in  debt  to  the  company, 
or  that  he  is  unable  to  pay  for  the  gas.(/) 

§  497.  A  mandamus  will  not  be  awarded  to  admit  or  restore 
a  minister,  wrongfully  excluded  from  his  pulpit  by  the  cor- 
porate trustees  and  congregation,  unless  he  has  some  tem- 
poral right  annexed  to  his  spiritual  functions,  such  as  an 
-endowment,  or  fixed  emolument,  or  salary.  For,  if  he  is  to 
be  supported  only  by  voluntary  contril)utions,  bis  otKce  is 
merely  a  spiritual  or  ecclesiastical  office,  and  a  wrongful  ex- 
clusion violates,  therefore,  no  legal  right,  so  that  a  court  of 
law  has  no  basis  of  jurisdiction  therein.     J^^ut  a  vKnulamns 

(rf)Il.  11.  V.  People,  r>ii  111.  372.  (r/)Stiite  f.    Foundry,  etc.,  Co.  :}2 

(<;) Irwin  v.  Lee,  34  Irul.  320.  N.  J.  440. 

(/)Slatc  V.  11.  li.  25  Lu.  Au.  25.  (/<)Stal.o  «.  (Ja»  (Jo.  2.'.  I-ii.  413. 

(/) People  fi.  (tas  ("o.  4.')  Harli.  137. 


49o  :\IAXI)A!MUS. 

lies  where  there  is  a  temporal  right  attached  to  the  functions 
of  the  office,  for  the  violation  of  which  the  law  affords  no 
specific  remedy,  and  there  would  be,  otherwise,  a  failure  of 
justice  in  respect  to  such  legal  right. (,/) 

And,  as  to  a  member  expelled,  the  principle  is  much  the 
same.  And  it  is  also  the  same  as  to  a  voluntary  organiza- 
tion other  than  a  church.  A  member  may  be  restored  by 
miniddinus  to  any  "substantial  right"  of  which  he  has  been 
deprived  by  the  action  of  the  society,  wrongfull}^  according 
to  its  constitution. (/c) 

Courts  will  not  interfere  to  force  a  person  to  receive  a  par- 
ticular pastor,  remain  a  member  of  a  church  organization,  or 
attend  worship  at  any  place. 

§  498.  A  bid  for  the  awarding  of  a  contract,  if  refused^ 
may  be  enforced,  and  its  acceptance  enjoined  by  mandamus^ 
if  it  in  all  particulars  conforms  to  the  conditions  imposed,  so- 
as  to  give  a  right  to  the  contract,  (/)  but  not  where  a  discre- 
tion is  left  with  the  contractors  to  decline  all  bids  which  tliej^ 
thought  excessive  or  disadvantageous;  and  the  only  impera- 
tive obligation  on  them  is  that,  when  they  do  contract,  it 
shall  be  with  the  lowest  bidders.  This  gives  the  lowest  l)id- 
der  no  right  to  invoke  the  authority  of  the  court  to  compel  a 
board  to  make  a  contract  with  him.(»?) 

§  499.  As  to  elections,  where  an  ordinance  provided  that 
the  two  branches  of  a  city  council  should,  in  convention,  an- 
nually appoint  a  street  commissioner,  and  the  usual  time 
passed  by  without  a  meeting,  it  was  held  a  meeting  to  elect 
could  be  properly  commanded  by  writ.(»)  And  so  with 
regard  to  an  election  for  successors  of  the  present  municipal 
officers,  whose  duty  it  is  to  call  an  election  and  who  refuse 
to  do  so.(o) 

And  canvassers,  whether  state  or  local,  can  be  required  by 

(j) Union    Church   v.    Sanders,    1  (»;)People  v.  Contracting;  Board, 

Houst.  128 ;  Feizel  v.  M.  E.  Church,  03  N.  Y.  382. 

!•  Kan.  597.  (/tj-^t'toruey  General  v.  Liiwreuce, 

(Ajliochler  v.  Mechanics'  Aid  Soc.  Ill  Mass.  91. 

22  Mich.  91.  (o)People    v.    Fairbury,     51    III. 

(^jPeoplet).  Contracting  Board, 46  150. 
Barb.  256. 


MANDAMUS.  497 

maudaiuiis  to  make  the  count  of  votes  cast,(p)  unless  in  a  case 
where  no  legal  right  can  be  established  thereby,  as  where  an 
election  is  held  when  no  vacancy  exists  in  oifice.((7)  And, 
also,  a  writ  will  be  granted  to  compel  canvassers  to  declare 
the  results  of  an  election,  and  so  certify  to  the  persons 
elected,  (r) 

§  500.  Where  a  writ  of  maiuhiinus  is  served  on  an  officer, 
who  does  not  remain  in  office  until  judgment  is  entered,  the 
judgment  is  void  and  cannot  be  executed  as  to  the  succes- 
sor, usually,  (s) 

§  501.  A  mandamus  is  not  the  proper  proceeding  to  try 
the  right  to  a  public  office. (i)  Nor  can  an  attorney  general 
be  properly  commanded  by  writ  to  institute  proceedings  in 
quo  tvarranto.(u)  Sometimes,  however,  mandamus  and  quo 
ivarranto  may  be  concurrent  remedies  as  to  an  office — the  lat- 
ter to  oust  the  incumbent,  and  the  former  to  require  the 
instalment  of  the  relator  in  the  vacated  place. (/•)  And,  if  a 
person  is  the  actual  occupant,  a  mandamus  is  held  to  be  the 
proper  remedy  to  shield  him  from  interference  in  the  discharge 
of  its  duties. (?r) 

§  502.  Although  the  right  to  an  office  is  not  to  be  inquired 
into  on  a  mandamus,  yet  a  demand  for  room,  keys,  books,  pa. 
pers,  etc.,  may  be  thereby  enforced. (x)  And,  even  where  the 
secretary  of  a  railroad  company  bought  a  set  of  books  out  of 
his  own  mone}'  and  used  them  for  the  entries  of  the  company, 
it  was  held  that  his  possession  in  that  way  was  the  poses- 
sion  of  the  company ;  that  he  had  no  right  to  take  the  l)ooks 
with  him  on  going  out  of  office;  that  he  had  no  lien  on 
them  either  for  his  services  or  the  purchase  money,  or  for  the 
occupation  of  his  premises  by  the  company;  and  that  the  com- 

(pjSlate  e.  Gibbs,  lo  Flor.  71.  (MJFcople  v.  Attorney  ({eiicral,  3 

(9)Lcavenwoilli    (."o.    v.    State,   5  Abb.  Pr.  i:J2. 

Kan.  (JSs.  (w)llu.ulie.s    v.    iiw^lw^,    44    Ala. 

(r)Bradtiel(l  v.  W'arl,  M  la.  2!):'..  ()99. 

{,s)Secretaiy  «.M(;(7anabau,  ft  Wall.  Ml^'.ople  r.  Sclinrniiain,  12  How. 

:20s.  Pr.    12f). 

(OPeople    n.    Detroit,     Js    Alicli.  (./iStatc   v.  Lagarde,  21    La.  An. 

338;   Warner  r.   Myers,  3   Oregon,  18. 
220. 

V.l— 32 


498  MANDAMUS. 

pany  had  a  right  to  a  peremptory  mandamus  for  the  delivery 
of  the  hooks. (^y)  However,  in  Missouri,  where  one  was  em- 
ployed hy  the  county  court  to  survey  all  the  public  courts  of 
the  county  and  plat  them  in  a  suitable  book,  and  after  receiv- 
ing the  contract  price  regained  possession  of  the  books  and 
refused  to  deliver  them,  the  court  held  a  writ  would  not  lie  to 
recover  the  books,  on  the  ground  that  he  had  not  held  any 
official  or  quasi  official  position  in  the  employment. (-2')  The 
treasurer  of  a  religious  incorporation  may  be  compelled  to 
deliver  up  the  books  pertaining  to  his  office  when  he  retires 
from  it. (a) 

§  503.  A  mandamus  is  not  usually  a  proper  remedy  to  try 
the  question  of  the  location  of  a  public  highway,  as  between 
the  public  and  the  land-holders  over  whose  land  it  is  to  be 
laid,  although  it  has  been  held  that  the  court  has  herein  a 
discretion  as  to  the  granting  or  withholding  the  writ.(/>) 

§  504.  Where  the  clerk  of  a  board  of  supervisors  issued, 
on  the  order  of  the  board,  a  county  warrant,  but  neglected  to 
seal  it  with  the  county  seal,  it  was  held  that  his  successor 
might  be  compelled,  bj'  ma)idamus,  to  seal  it;  and  that  it 
would  be  no  defence  that  there  is  a  speedy  and  adequate 
remedy  at  law,  by  an  action  on  the  bond  of  the  former  clerk, 
by  whose  negligence  the  warrant  was  left  defective,  on  the 
ground  that  the  county  is  a  political  corporation,  having  the 
attribute  of  perpetual  succession,  and  the  action  of  mandamus 
is  not  against  the  person,  but  against  the  officer  of  a  corpora- 
tion, whoever  he  ma3"be.(c)  And,  therefore,  such  a  proceed- 
ing does  not  abate  bj'  any  changes  in  officers;  as,  for  exam- 
ple, changes  in  a  municipal  board  b}'  resignations  and  re-ap- 
pointments, (rf) 

§  505.  The  clerk  of  a  county  court,  or  other  officer  whose 
duty  it  is,  can  be  compelled  to  execute  a  deed  to  one  who  has 
a  valid  tax  certificate,  but  to  whom  a  deed  fatally  defective 
has  been  issued ;  the  execution  of  a  void  tax  deed  being  re- 

(j/)State  V.  Gall,  32  N.  J.  289.  (Z')Peop!o  «.  Curyeii,  16  111.  547. 

(j)State  V.  Trent,  58  Mo.  572.  (c-lPrescott  ♦;.  Gouser,  34  la.  176. 

(a)St.Luke'sChurch,etc.,f;.Slack,  (d)County  Coram'rs  v.  Biyson,  12 

7  Cush.  238.  Flor.  282. 


MANDAMUS.  4:9!"> 

garded  as  equivalent  to  executing  none  at  all.(<')  Under  the 
present  statutes,  however,  the  commissioner  of  the  general 
land-office,  and  the  secretary  of  the  interior,  cannot  be  com- 
pelled to  issue  a  patent. (/) 

A  mayor,  or  other  officer,  may  be  commanded  to  sign  a 
contract  in  a  proper  ca,se.(g) 

§  500.  In  Michigan  it  is  held  that  a  mandamm  will  lie  to 
compel  the  admission  of  a  colored  child  into  the  public 
schools. (/<)  But  it  is  held  otherwise  in  California,  provided 
separate  schools  are  maintained  for  the  education  of  colored 
children,  (i) 

In  Massachusetts  mandamus  lies  to  enforce  the  right  of  a 
member  of  a  school  committee  to  act  as  a  member  of  the 
board,  to  the  exclusion  of  a  person  whom  the  other  members 
recognize  and  permit  to  act  in  his  stead ;(,/)  which  appears  to 
be  an  exception  to  the  general  rule,  that  the  right  to  an  office 
is  not  determinable  in  this  manner.  However,  when  a  party 
is  aggrieved  by  the  action  of  a  board  of  school  directors,  and 
is  entitled  to  an  adequate  appeal  to  the  county  superintendent 
and  thence  to  the  state  superintendent,  the  courts  will  not 
interfere.  ( A- j 

§  507.  Nor  will  a  court  compel  a  survey,  where  there  is  a 
legal  impediment  only  to  be  removed,  by  an  adjudication  of 
the  locator's  right  to  have  the  land  selected,  located,  and  sur- 
veyed. (^) 

§  508.  In  addition  to  what  we  have  already  considered  in 
this  chapter,  relative  to  the  amenability  of  inferior  courts  to 
writs  of  mandamus,  we  mention  the  following  miscellaneous 
particulars : 

A  justice  of  the  peace,  in  recording  his  judgments,  is  re- 
garded as  a  ministerial  officer,  and  a  party  aggrieved  may  liavo 
a  writ  to  require  him  to  make  a  true  record  of  a  judgment  he 
has  rendered,  and  to  give  a  copy  of  it  to  the  party  when  ])r()ji- 

(e)Clippinger  v.    Fuller,   10  Kan.  (//) People  ♦).    Hd.    Kdncalidii,   is 

381.  Mich.  4(11. 

(f) Secretary    v.    McGanahan,    9  (/)\Var(I  v.  Flood,  4s  Cal.  r.7. 

Wall.  29S.  (jjCoiilin  v.  Aldricli,  98  Mass.  .O.'i'^. 

((/jState  V.  Mayor,  35  N.  J.  396.  (/t)Marshall  v.  Sloan,  :ir>  la.  44.';. 

(;)Holioway  v.  IloUoway,  30  Tex.  177. 


500  MANDAMUS. 

erly  demanded;  and  the  superior  court,  it  is  held,  has  juris- 
diction to  determine  whether  the  record  or  the  copy  is  correct 
or  not.(m) 

In  New  York  mandamus  will  lie  to  compel  the  commis- 
sioner of  jurors,  who  is  a  mere  ministerial  officer,  to  strike  off 
of  the  list  of  jurors  the  name  of  a  person  not  liable  to  jury 
duty.(«)  And  also  to  cause  the  clerk  of  an  inferior  court  to  issue 
execution  on  a  judgment. (o)  And  to  require  a  county  judge 
to  admit  a  certified  will  to  record  and  issue  letters  testament- 
ary. (;;) 

A  court  will  not,  by  mandamus,  compel  obedience  to  a  writ 
of  habeas  corpus  issued  by  a  lower  co\ii't,(q)  because,  if  the 
lower  court  has  authority  to  issue  the  writ,  it  has  authority  to 
compel  obedience  itself, 

§  509.  Where  respondents  return  a  legally  sufficient  cause 
to  the  alternative  writ,  though  it  be  false  in  fact,  the  court 
will  proceed  no  further  until,  in  an  action  on  the  case  for  a 
false  return,  or  by  criminal  information,  the  return  is  falsi- 
fied; and  then  it  will  issue  a  peremptory  writ,(r)  because  a 
return,  until  thus  falsified,  is  to  be  taken  as  true;(s)  and  the 
court  cannot  thereon  inquire  into  disputed  facts. (f) 

An  alternative  writ,  however,  is  amendable  so  as  to  pre- 
serve the  symmetry  of  the  proceedings  throughout.  (?/) 

§  510.  As  to  who  may  be  a  relator  the  rule  is  thus  stated : 
This  "depends  on  the  object  to  be  attained  by  the  writ. 
Where  the  remedy  is  resorted  to  for  the  purpose  of  enforcing  a 
private  right,  the  person  interested  in  having  the  right  en- 
forced must  be  the  relator.  The  relator  is  considered  as  the 
real  party,  and  his  right  to  the  relief  demanded  must  clearly 
appear.  But,  when  the  object  is  the  enforcement  of  a  public 
right,  the  people  are  regarded  as  the  real  party,  and  the  re- 
lator need  not  show  that  he  has  any  legal  interest  as  such  in 
the  result.     It  is  enough  that  he  is  interested  as  a  citizen  in 

(;//,)8mith  V.  Moore,  .'>8  Conn.  105.  (g) People  v.  Edwards,  6(5  111.  59. 

(r^People  v.  Taylor,  45  Barb.  129.  (r)Dane  v.  Derby,  54  Me.  97. 

(i9)People   V.    Clerk,   2   Abb.    Pr.  (.s)Swan  «.  Gray,  44  Miss.  395. 

309.  (^)Beaman    f).    Police,     42    Miss. 

(p) Williams  v.  Saunders,  5  Cold.  242. 
60.  (instate  v.  Charleston,  1  S.  C.  30. 


MANDAMUS.  50 1 

having  the  laws  executed,  and  the  right  in  question  en- 
forced." (i') 

In  California  it  is  held  that,  if  an  action  be  brought  in  the 
name  of  the  people,  and  it  appears  that  the  people  are  not 
interested,  but  only  the  relator,  the  writ  will  be  dismissed  at 
once;(^t')  but  in  some  other  states  the  name  of  the  people  is 
used  even  in  cases  intended  to  secure  private  interests.  See 
supra  in  this  chapter,  and  notes. 

As  to  the  nature  of  a  relator's  interest  it  is  held  that  it 
must  be,  if  the  action  is  in  his  own  behalf,  an  interest  distin- 
guishable from  that  of  the  communit}^  at  large,  so  that  a  pri- 
vate person,  whose  only  interest  is  that  of  a  resident  elector, 
cannot  appl}'  in  his  own  name,  as  plaintiff,  to  compel  an 
order  for  a  vote  on  the  question  of  removing  the  county 
seat.(j;) 

The  rule  that  a  person  cannot  bring  an  action  at  law  against 
a  partnership,  board  of  trustees,  or  other  boards  of  which  he 
is  a  member,  does  not  apply  to  an  action  of  mandamus. [y) 

A  writ  will  lie  in  behalf  of  a  non-resident,  illegally  assessed, 
to  compel  a  correction  of  the  assessment. (-2') 

When  an  alternative  writ  is  prayed  against  two  persons  it 
must  properly  be  allowable  against  both,  or  it  cannot  issue  at 
all.  (a) 

(®)City   of  Ottawa  «.  People,  48  (;/) Cooper  «.  Nelson,  38  la.  440. 

111.  240;  People  ».  Halsey,  53  Barb.  (2)People  v.  Assessors,  44  Barb. 

547.  148. 

(w) People  V.  Pacheco,  29  Cal.  211.  (a)People  v.  Yates,  4U  ill.  128 

(.r)  Linden  v.  Supervisors,  45  (Jal.  6. 


502  PROHIBITION NE    EXEAT. 


CHAPTEE  XVI. 

PROHIBITION— A'£  EXEAT. 

i  511.  Distinctious. 

512.  Nature  of  tliu  writ  of  prohibition. 

513.  Its  design. 

514.  As  to  the  mayor  of  a  city. 

515.  As  to  the  levy  of  taxes. 

51(3.  (yoniiection  w;th  appellate  jurisdiction. 

517.  Its  object  is  not  to  correct  errors,  but  to  restrain  courts. 

518.  Contempts. 

519.  Decline  of  nr  exeat  writs. 

520.  Its  stains  in  New  York. 

521.  Purpose  of  the  writ. 

522.  Nature  of  debt. 

523.  Trover. 

524.  Partnership  settlements. 

525.  Divorce  and  alimony. 
52P.  No  remedy  at  law. 
527.  Affidavit. 

52S.  Power  of  a  justice  of  the  peace. 

529.  Enforcing  specific  performance — is.suing  in  vacation. 

§  511.  The  writ  of  prohibition  differs  from  an  injunction 
mainly  in  this  :  that  an  injunction  lies  to  restrain  parties,  and 
prohibition  to  restrain  courts  ;  and  from  mandamus  in  this  : 
that  its  pur^DOse  is  to  restrain  judicial  proceedings,  while  a 
vuni(himus  is  used  to  command  the  performance  of  ministerial 
duties,  imposed  by  express  or  plainly  implied  requirements 
of  the  law.  It  agrees  with  both  injunction  and  mandamus  in 
this :  that,  where  there  is  an  adequate  remedy  a^t  law,  it  is  not 
available. (a)  And  so,  in  an  equity  case,  the  j)etitioner  must 
have  sought  all  available  relief,  by  moving  to  dismiss  the 
cause  for  want  of  jurisdiction  in  the  court  itself,  before  he 
can  obtain  a  prohibition.  Hamilton's  Case,  51  Ala.  02.  A 
l^lea  to  the  jurisdiction  must  be  filed  and  overruled  before  a 

(a)Statc  V.  Braun,  31  Wis.  606. 


PBOHIBITION NE    EXEAT.  503 

jurisdiction  will  lie.  State  v.  Judge,  29  La.  An.  806;  Barnes 
V.  Gottschalk,  3  Mo.  App.  111.  And  where  there  is  a  statu- 
tory mode  of  testing  contested  elections  the  writ  is  not  avail- 
able. Kemp  V.  Ventulett,  58  Ga.  449.  So,  if  the  action  of  a 
court  is  subject  to  review  in  any  ordinary  mode  of  appeal,  the 
writ  will  not  be  issued.  (6)  But  it  is  held,  in  Alabama,  that  a 
prohibition  will  be  awarded  to  vacate  a  final  decree,  or  pre- 
vent its  enforcement,  which  is  a  nullity,  and  from  which,  on 
account  of  the  entire  absence  of  adverse  parties,  no  appeal 
can  be  taken.     Lyon's  Case,  60  Ala.  650. 

§  512.  Moreover,  it  has  application  only  in  uncompleted 
acts,  to  prevent  the  doing  of  some  act  about  to  be  done.  So, 
if  the  court  to  which  the  writ  should  be  issued  has  already 
disposed  of  the  case,  so  that  nothing  remains  which  the  court 
can  do,  either  in  the  way  of  executing  its  judgment  or  other- 
wise, no  prohibition  will  issue;  and  this  is  the  case  even 
though  the  final  disposition  was  made  after  the  judge  had 
been  served  with  a  rule  to  show  cause  why  a  writ  should  not 
issue,  and  even  though  similar  cases  may  still  be  pending  in 
the  same  court. (c) 

§  513.  The  writ,  as  above  intimated,  is  not  available  to 
restrain  the  performance  of  ministerial  acts,  such  as  collecting 
taxes,  locating  county  seats,  and  the  like,  however  erroneous 
such  ministerial  acts  may  be.((/)  And  yet  there  is  an  appar- 
ent exception  to  this  rule  in  Massachusetts,  where  an  author- 
ity to  lay  out  and  widen  streets  in  a  city  is  exclusively  in  a 
board  of  aldermen,  and  in  another  city  this  authority  is 
exclusively  in  the  common  council.  A  statute  in  1866  pro- 
vided that  the  former  board  of  aldermen  should  retain  their 
authority  in  this  respect,  and  should  also  have  power  to  assess 
betterments  on  abutting  lots.  In  1867  a  statute  was  passed 
which  declared  the  provisions  of  the  former  act  were  "extended 
and  made  applicable"  to  the  latter  city.  In  this  case  it 
was  held  that  the  late  act  did  not  give  the  aldermkn  of  the 
second  city  authority  to  widen  streets  and  assess  a  betterment, 

(6)People    V.    Circuit    Court,    11  ((ijSlate  v.  Clark  Co.  Ct.  41  Mo. 

Mich.  393.  44. 

(c)U.  S.  V.  Hoffman,  4  Wall.  158. 


504:  PEOHIBITION NE    EXEAT. 

and  that  if  they  attempted  so  to  do  they  might  be  restrained 
b}'  prohibition. ((?) 

§  514.  It  has  been  held  that  a  mayor  being  the  chief  exec- 
utive officer  of  a  city,  and  as  such  authorized  to  have  super- 
vision over  other  officers  in  the  discharge  of  their  duties,  he 
cannot  be  prohibited  from  proceeding  with  an  investigation 
of  charges  against  the  chief  of  police,  because  in  this  matter 
he  does  not  act  as  a  court,  but  only  as  such  chief  executive 
officer,  and  is  therefore  subject  to  the  supervision  of  the  courts 
therein.  (/) 

§  515.  Prohibition  does  not  lie  against  the  lev}^  of  an  ille- 
gal tax,  perhaps  partly  because  in  a  proper  case  a  court  of 
equity  will  grant  an  injunction  upon  such  lev}^  and  partly 
because  it  is  rather  a  ministerial  than  a  judicial  act;  although 
in  Georgia  parties  seem  to  have  no  remedy  in  advance,  and  it 
is  declared  that  they  must  pa}^  their  tax,  and  then  pursue 
their  remedy  against  the  tax  collector  as  an  individual,  (g) 
which  is  a  very  circuitous  route  in  the  way  of  justice. 

§  516.  In  the  United  States  supreme  court  it  is  held  that 
a  writ  of  prohibition  is  not  issuable  therefrom  in  cases,  such 
as  criminal  cases,  where  it  has  no  appellate  jDower  given  by 
law,  nor  any  special  authority  to  issue  the  writ. (7*)  And  the 
same  doctrine  is  held  in  Kentucky,  and  it  is  placed  on  the 
ground  that  "if  a  proceeding  for  prohibition  may  be  instituted 
in  the  court  of  appeals,  it  could  be  done  only  in  a  case 
where,  in  the  exercise  of  its  appellate  jurisdiction,  it  has  the 
power  of  controlling  the  inferior  court  by  a  direct  revision  of 
its  judicial  acts.  For,  if  the  court  has  no  appellate  jurisdic- 
tion in  tlie  case,  of  which  the  court  below  is  improjDerly  tak- 
ing cognizance,  it  has  ho  jurisdiction  at  all  over  the  case, 
and  therefore  cannot  interfere  by  writ  of  prohibition. "(i) 

§  517.  The  object  of  a  writ  is  not  to  correct  error  either  of 
law  or  fact,  whether   in  admitting  evidence(ji)  or  anything 

(e)Day   v.   Springfield,  102   Mass.  (/i)C4orclon's  Case,  1  Black,  503. 

31(1.  (?)Sasseen    f).    Hammond,    IS    B. 

(/)Busch  V.  Ilardwicke,  23  Gratt.  Mon.  674. 

52.  ( '')Leonard's  Case,  3  Kich.  111. 

(/yjCodv  V.  Lennard.  45  Ga.  85. 


PROHIBITION — NE    EXEAT.  -      505 

«l8e.  Its  object  is  to  restrain  inferior  courts  from  exercising 
jurisdiction  where  they  do  not  properly  possess  jurisdiction 
at  all,  or  else  to  prevent  their  exceeding  their  limits  in  mat- 
ters of  which  they  have  cognizance. (/t)  And,  if  the  inferior 
court  has  jn-ima  facie  jurisdiction,  a  superior  court  will  not 
interfere  by  prohibition.  State  v.  Judge,  29  La.  An.  360. 
And  the  writ,  as  a  prerogative  writ,  is  always  subject  to  a 
sound  judicial  discretion.  Supervisors,  etc.,  v.  Wingfield,  Judge, 
20  Gratt.  333. 

In  Indiana  it  has  been  held  that  it  is  sufficient  that  some 
collateral  matter  arising  in  the  cause  be  beyond  the  jurisdic- 
tion in  order  to  justify  the  writ. (7)  In  California,  however, 
it  has  been  decided  that  the  action  of  a  board  of  supervisors 
will  not  be  arrested  unless  the  proceedings  themselves  are 
absolutely  without,  or  in  excess  of,  their  jurisdiction. (m'l 

In  New  York  a  j)rohibition  from  the  supreme  court  lies  to 
prevent  the  exercise  of  unauthorized  power  in  a  cause  or  pro- 
ceeding of  which  the  inferior  tribunal  has  jurisdiction,  no 
less  than  when  the  entire  cause  is  without  jurisdiction  ;(n) 
the  original  design  of  the  writ  being  that  it  should  prevent 
an  encroachment  of  jurisdiction. (o) 

But  the  transgression  must  be  palpable  in  order  to  sustain 
the  writ,  for  the  awarding  of  the  writ  is  largely  discretionary; 
so  that,  although  it  will  be  issued  where  visitorial  or  other 
authority  is  plainly  usurped,  yet  it  will  be  refused  where  the 
general  scope  or  purpose  of  the  actitm  is  within  the  jurisdic- 
tion of  the  inferior  court.  A  mere  outstepping  of  its  author- 
ity in  a  portion  of  its  judgment,  or  any  other  error  in  its 
proceedings,  is  only  a  ground  for  review  or  appeal,  and  not 
of  prohibition. (/>)  So,  although  a  bill  in  chancery  may  be 
fatally  defective  in  averments,  may  abound  in  imperfections, 
and  may  even  be  filed  in  a  district  where  the  defendants  are 
not  liable  to  be  sued,  yet  these  are  mere  matters  of  defence, 
and  cannot  be  reached  by  a  writ  of  tliis  character. (7) 

(AjPeople    »).    Marino    Court,    :5(J  (/ijAppo  »'.  IVoplc,  2(1  N.  Y.  oSl  ; 

Barb.  341.  Sweet  v.  Ilulherl,  .01  13arl>.  0I3. 

(i)Comm'rs  «.  Spitler,  13  Ind.  230.  (ojTIionias  v.  Mead,  3(i  ]\Io.  233. 

(m)People  v.  Supcivi.sor.s,  47  Cal.  {7>)People  v.  Court,  43  Unit..  278. 

gl^  (7)Grcene'8  Case,  2!)  Ala.  .12. 


506  PEOHIBITION NE    EXEAT. 

§  518,  A  writ  of  prohibition  in  enforceable  by  contempt  for 
disobedience,  (r) 


§  519.  Writs  of  ne  exeat  are  doubtless  waning,  and  will 
probably  become  obsolete  in  no  great  period  of  time.  In  civil 
actions,  within  the  provisions  of  the  civil  code,  it  no  longer 
exists,  in  Ohio,  Cable  v.  Alvord,  27  Ohio  St.  654.  In  New 
York  it  has  been  held  that  although  the  codifiers  intended  to 
abolish  the  writ,  yet,  failing  to  do  so  expressly,  the  remedy 
still  continues  to  exist,  for  a  repeal  by  implication  is  not  fa- 
vored; so  that,  unless  a  later  act  mentions  the  former  in  some 
way  plainly  indicating  an  intention  to  repeal  it,  the  repeal, 
though  designed,  is  not  effected;  and  the  court  remark  that, 
"if  an  incidental  provision  in  an  act  be  deemed  a  repeal  of  an 
express  provision  of  a  former  act,  it  will  make  the  confusion 
which  we  already  have  in  our  law  'worse  confounded,'  will 
mar  any  harmony  that  is  left  in  it,  and  will  open  the  door  still 
wider  to  fraudulent  legislation  ;"  (.•j)  a  reason  not  very  compli- 
mentary to  average  legislatures, 

§  520.  Moreover,  it  is  held  by  the  court  of  New  York  that 
the  writ  is  indispensable;  which  may,  perhaps,  account  for 
the  above  sneer  at  the  ineffectual  attempt  of  the  codifiers  to 
extinguish  it;  and  it  says:  "At  wiiat  particular  period  this 
writ  was  introduced  into  the  practice  of  the  English  court  of 
chancery,  and  to  what  particular  purposes  it  was  originally 
applied,  ma}^  be  involved  in  some  obscurity;  but  none  will 
deny  that  the  power  to  issue,  and  apply  it  to  those  uses  sanc- 
tioned by  immemorial  practice,  is  an  essential  and  indispen- 
sable attribute  of  the  equity  courts.  Without  its  aid,  or  that 
of  some  other  equivalent  process,  the  equitable  jurisdiction 
vested  in  this  court  by  the  constitution  must  fail,  and  its 
functions  in  regard  to  many  subjects  of  equitable  cognizance 
become  useless,  for  decrees  and  orders  are  senseless  and 
unmeaning  ceremonies  when  the  tribunal  which  makes  them 
is  shorn  of  the  power  to  carry  them  into  execution.     Upon 

(r)Howar(i  v.  Tierce,  3S  Mo.  2'.IG.  (.s)Breclv  v.  Smith,  54  Barb.  214 


PROHIBITION NE    EXEAT.  50T 

the  facts  before  the  court,  in  this  action,  (wherein  the  opin- 
ion was  delivered,)  the  statute  authorizes  a  decree  for  a  sep- 
aration from  bed  and  board  forever,  or  for  a  limited  time^ 
together  with  such  order  and  decree  for  the  suitable  support 
and  maintenance  of  the  wife  bj-  the  husband,  or  out  of  his 
property,  as  the  nature  of  the  case  renders  suitable  and 
proper.  But  if  the  husband  who  owes,  and  has  the  abil- 
ity to  make,  this  just  reparation  to  his  injured  wife,  cannot  be- 
restrained  within  the  jurisdiction  of  the  court  during  the 
pendency  of  the  litigation;*  if  he  may  withdraw  himself  to 
the  distant  shores  of  the  Pacific,  there -to  enjoy  his  properly 
and  ample  salary  at  his  leisure,  while  she  remains  to  labor 
as  a  menial  for  subsistence, — the  provisions  of  the  statute  are,, 
in  respect  to  her,  a  mass  of  unmeaning  words,  and  any  decree 
which  the  court  might  make  will  be  a  barren  and  fruitless  pro- 
ceeding. The  argument  ab  inconrodenti,  however,  will  be  u.ua- 
vailable  in  the  face  of  a  legislative  enactment ;  and,  if  the 
power  to  keep  a  defendant  within  the  jurisdiction  of  the 
court,  in  a  case  like  the  present,  until  a  decree  can  be  made,, 
is  taken  away  by  the  code  of  procedure,  then,  whatever 
may  be  its  value,  the  courts  have  no  other  duty  but  to  sub- 
mit. "(0 

§  521,  As  to  the  purpose  of  the  writ  the  same  opinion 
goes  on  to  say:  "Tiie  writ  of  ne  exeat  bears  no  resemblance 
to  the  mesne  or  final  process  of  the  common-law  courts.  Its. 
primary  purpose  is  not  to  arrest  the  defendant,  nor  to  put  him 
in  safe  custody  during  the  pendency  of  the  litigation.  Such 
is  not  its  mandate.  It  commands  the  sheriff  to  cause  the 
defendant  to  come  before  him  and  give  him  sufficient  security 
that  he  will  not  go  without  the  state  into  foreign  parts  with- 
out leave  of  the  court;  and  if  he  shall  rcfusa  to  give  sush 
security  then  to  commit  him  to  the  common  jail  of  the  county 
until  he  does  so  of  his  own  accord.  Until  he  refuses  to  givct 
the  requisite  security  he  cannot  l)e  restrained  of  his  liberty; 
and  wlien  he  has  given  it  he  may  go  wherever  he  pleases, 

*Rulauxiliaiyproce('diiij;sl)y  at-  (OBusliiicll  v.  Buslniull,  I'.   Hinl.. 

taclmicut  could  be  made  to  hold  a      401. 
pait\-. 


608  PROHIBITION NE    EXEAT. 

provided  he  is  within  the  jurisdiction  of  the  court  when  its 
process  to  enforce  the  decree  issues.  In  the  meantime  he  is 
not  deemed  to  be  in  the  custody  of  any  person.  That  the 
writ  was  formerly  used  as  a  means  of  enforcing  equitable 
debts  does  not  affect  the  argument,  for  the  rule  is  that  when 
the  person  of  the  defendant  cannot  be  taken  under  the  decree 
by  execution  or  attachment  the  writ  will  not  be  issued. "(?/) 
With  all  due  deference  we  must  say  that  all  the  characteris- 
tics of  an  arrest  seem  to  meet  in  the  essential  nature  of  the 
proceeding. 

The  Massachusetts  court  has  thus  defined  it :  "Upon  the 
question,  in  what  cases  this  writ  is  to  be  granted,  according 
to  the  course  of  i)ractice  in  chancer}',  the  authorities  are 
somewhat  conflicting,  and  it  is  not  easy,  upon  a  hurried  ex- 
amination, to  draw  a  precise  and  definite  line  between  the 
cases  in  which  it  will  and  will  not  be  granted.  This  difli- 
culty  may,  and  probably  does,  arise  from  the  fact  that  the 
question  is  commonly  decided  upon  a  summary  application  to 
a  judge,  at  chambers,  upon  an  ex  i)arte  hearing,  and  without 
the  time  for  deliberation  usually  taken  for  the  decision  of 
important  questions.  The  general  rule  of  practice  to  be 
gathered  from  the  cases,  we  think,  is  that  the  writ  is  to  be 
granted  only  in  a  case  of  equitable  ascertained  debt,  to  which 
affidavit  can  be  made  with  a  good  degree  of  certainty,  or  when 
it  can  be  shown,  b}'  reference  to  accounts  or  to  other  author- 
ized documents,  to  the  reasonable  satisfaction  of  the  court, 
that  something  in  the  nature  of  an  ascertainment  of  a  debt 
has  taken  place,  whereupon  a  debt  arises.  But  we  think 
that  the  writ  is  not  grantable  when  the  account  is  open  and 
unliquidated,  although  the  plaintiff  states  in  his  affidavit  that 
a  certain  sum  is  due.  Such  an  allegation,  although  in  terms 
the  statement  of  a  fact — that  is,  of  the  defendant's  actual  in- 
debtedness— must,  nevertheless,  be  qualified  b}'  the  subject- 
mattei  to  which  it  relates ;  and  where  it  relates  to  a  long 
unliquidated  account,  or  to  facts  which  are  future  and  contin- 
gent, it  can  amount  to  nothing  more  than  a  strong  declara- 
tion of  a  confident  expectation  or  belief,  and  is  not  a   suf- 

(!/)Ibid,  40-i. 


PROHIBITION NE    EXEAT.  509 

ficient  ground  for  issuing  the  writ,  unless  it  is  accompanied 
and  supported  by  proper  accounts  and  documents. (r) 

§  522.  The  debt  in  general  must  be  not  a  legal  obligation, 
but  an  equitable  debt,  and  then  either  be  certain  or  capable 
of  being  reduced  to  certainty,  ex  parte.{ic)  However,  in  some 
states,  as  in  Illinois  and  Indiana,  the  writ  may  be  invoked 
on  the  ground  of  fraud,  in  case  of  a  legal  obligation.  In 
Indiana  if  the  maker  of  a  promissory  note  is  about  to  depart 
the  state,  and  take  his  propei'ty,  the  payee  may  sue  out  a 
writ  of  ne  exeat,  even  if  there  is  security  on  the  note — the 
affidavit  alleging  that  the  maker  is  about  to  take  his  property 
away,  so  as  to  defraud  the  payee  and  the  surety.  Fitzgerald 
V.  Gray,  59  Ind.  254-.  And  the  necessity  that  it  shall  be 
equitable  ni  its  nature  is  not  obviated  merely  by  a  code 
abolishing  distinctions  in  the  forms  of  action,  Init  leaving 
the  essential  differences  intact  between  legal  demands  and 
equitable  claims. (c)  However,  there  seems  to  be  an  excep- 
tion in  New  York,  although  I  do  not  think  the  language 
fully  expresses  the  meaning  of  the  court  therein,  as  it  seems 
self-contradictory  in  a  measure.  "The  writ  of  ne  exeat," 
say  the  court,  "is  in  the  nature  of  equitable  bail,  and  to 
entitle  the  complainant  to  such  bail  there  must  be  a  pres- 
ent debt  or  duty,  or  some  existing  right  to  relief  against  the 
defendant  or  his  property,  either  at  law  or  in  c(piity."(</) 
In  Arkansas  the  statute  has  extended  it  to  cases  where  there 
are  contracts  or  covenants  to  be  performed,  and  the  period 
of  performance  or  payment  has  not  yet  come,  provided  tlie 
complainant  entered  into  the  agreement  hona  fide,  and  with- 
out any  notice  of  the  intention  of  the  defendant  to  depart  the 
state,  (^) 

§  523.  Especially,  the  writ  does  not  lie  in  regard  to  actions 
of  tort,  as  trover  for  cotton. (^/.)  And,  in  all  cases  where  it  is 
issued  without  jurisdiction  and  executed,  it  siil)ject8  the  com- 

(vjRice  «.  Hale,  5  Cusli.  240.  (^)l)c    JiivMlhioli    .;.    ('(.isclti,  -4 

(w)Gmhiun  v.  Slucken,  4  Blatcli.      Paige  Cli.  271. 
(J   (J   54  (.TjOrcsliiim  v.  J'ctcrson,  '!■>  Ark 

(a;)Bonesteel  v.  Bonesteel,  28  Wis       ■'.'^0. 
248  (^t)Il)id. 


510  PKOHIBITION NE    EXEAT. 

plainant  suing  it  out  to  an  action  for  trespass  and  false  im- 
prisonment, (fc)  And  even  -where  there  is  jurisdiction,  if 
there  be  no  affidavit  as  a  basis,  or  if  the  writ  be  not  properly 
attested  by  the  clerk  when  issued,  even  by  a  judge  at  cham- 
bers, and  though  the  suing  out  of  the  writ  was  without  any 
express  malice, (c)  the  liability  is  incurred. 

§  524.  A  writ  may  properh'  he  granted  to  compel  the  set- 
tlement of  a  partnership  account,  where  it  appears  that  the 
defendant  has  converted  his  property  into  money  or  notes, 
and  has  threatened  to  leave  the  state. (f/) 

§  525.  And  where  a  suit  for  partial  divorce  and  alimony  is 
pending, (c)  or  where  the  suit  is  for  alimony  alone ;(/)  and  in 
such  a  case  application  may  be  made,  wdien  the  defendant  is 
not  in  the  state,  and  is  not  even  a  resident  of  the  state,  in 
anticipation  that  the  writ  can  be  in  readiness  to  be  served  on 
him  on  a  casual  visit  within  the  jurisdiction.  Says  the  chan- 
cellor of  New  Jersey :  "It  is  true  that-  the  statute  requires 
that  there  shall  be  satisfactory  proof  to  the  chancellor  that 
the  defendant  designs  quickly  to  depart  out  of  the  state.  I 
think  a  person  may  have  this  design  without  actually  being 
in  the  state  at  the  time.  He  inay  design  to  come  quickly 
and  to  depart  quickly, "((jr)  and  hence  the  necessity  of  setting 
a  trap  for  him.  And  yet  a  writ  issued  in  that  state  on  Sun- 
day is  void,  and  a  bond  given  thereon  will  be  cancelled. 
Jewett,  Receiver,  v.  Bowman,  27  N.  J.  Eq.  275. 

§  52G.  According  to  the  usual  rule  of  chancery  proceedings, 
and  of  issuing  any  extraordinary  writ,  it  must  apjjear  that 
there  is  no  adequate  remedy  at  law — that  is,  that  the  process 
at  law  is  not  available  or  not  sufficient, (/i)  or,  in  Georgia, 
that  the  party  cannot  be  held  to  bail  at  law.(i)  In  that  state 
the  writ  seems  to  have  a  very  wide  range,  and  to  be  exce^D- 
tional,  since,  by  the  statute  of  1813,  it  was  made  available  to 

(6)Adams   v.    Wliitcomb,   4G   Vt.  (/)Yule  v.  Yule,  2  Stock.  Cli.  (X. 

712.  J.)  139. 

(c)Bonesteel  «.  Bonesteel,  28  Wis.  (.9)Parker    v.    Parker.    1   Bt'asley, 

248.  107. 

(d)Dean  v.  Smith,  23  Wis.  483.  (/MOnne    v.    McPlierson,    3d   Ga. 

(e)McGee  v.  McGee,  8  Ga.  296.  573. 

(?)Hannahan  v.  Nichols,  17  Ga.  77. 


PROHIBITION NE    EXEAT.  511 

-co-obligors,  as  securities,  when  a  principal  or  other  obligor 
is  about  to  remove  beyond  the  jurisdiction;  and  this  is  applied 
even  to  a  bail  bond  in  trover. (j)  Where  a  judgment  had 
been  obtained  and  an  execution  returned  luilla  bona,  tlie 
plaintiff  attempted  to  sue  out  a  writ  of  tie  exeat  on  an  allega- 
tion of  fraud.  But  the  court  held  that  as  the  court  of  law 
could,  by  issuing  a  capias  ad  satisfaciendum,  effect  as  much, 
at  least,  as  a  court  of  equity  could  effect  by  a  ne  exeat,  the 
latter  could  not  properly  interfere  in  the  matter.  Victor  Scale 
Co.  V.  Shurtlef,  81  111.  313.  And  even  if  a  judgment  debtor 
has  sold  his  goods,  and  is  about  to  depart  from  the  state,  an 
application  for  a  writ  of  ne  exeat  must  allege  that  the  prop- 
erty sold  was  not  exempt  from  execution.  Malcolm  v.  Au- 
dreics,  68  111.  100;  Jones  v.  Kennicott,  83  111.  485. 

§  527.  The  jurisdiction  will  be  exercised  only  on  a  certain 
affidavit,  and  mere  fears  and  apprehensions  of  the  jDarty 
applying  are  insufficient. (/c)  However,  it  is  held  that  the  affi- 
davit need  not  state  in  so  many  words  that  the  defendant  is 
about  to  leave  the  state  to  avoid  the  jurisdiction  of  the  court, 
but  this  must  be  a  necessary  inference  fi-om  the  facts,  or  at 
least  it  must  be  a  necessary  inference  that  the  defendant's 
departure  will  defeat  the  complainant's  action  in  effect.  The 
affidavit  must  be  positive  as  to  the  intention  of  departing,  or 
as  to  declarations  or  threats  of  that  nature;  j^et  even,  some- 
times, an  affidavit  on  information  and  belief  may  be  allowed, 
as  in  cases  of  divorce  and  alimony. (7)  In  ordinary  cases  an 
affidavit,  "to  the  best  of  the  knowledge  and  belief"  of  the 
affiant,  will  not  justify  the  writ.(??i) 

§  528.  In  Indiana,  contrary  to  the  general  rules  regulating 
the  writ,  the  statute  of  1847  allowed  it  to  be  issued  by  a  jus- 
tice of  the  peace. (>() 

§  529.  The  writ  may  be  a  necessary  incident  in  proceed- 
ings to  enforce  a  specific  performance ;(o)  and,  owing  to  the 
necessity  of  promptitude,  it  may  be  issued  in  vacation  as  well 
as  in  term  time.(o) 

(j)Wood8  f).  Symmes,  2r)  Gil   71.  (//)[,()U(l<Tl>;i(:k   v.   KosiMi.nrmt,   4 

^/c) Forest  v.  Forest,  10  Barb.  47.  Irul.  M-l. 

(i)Yule  V.  Yule,  2  Stock.  139.  («)S:imuel    v.    Wiley,   r>0  N.   II. 

(m)Bryan  v.  Ponder,  23  Ga.  483.  354 


512  ATTACHMENT 


CHAPTER  XVII. 

ATTACHMENT. 

530.  Statutory  baf5is. 

531.  Parties — nou-residents. 

532.  Joint  claims. 

533.  Mere  absence. 

534.  Intention  to  avoid  process. 

535.  Design  to  defraud  creditors. 

536.  Abscondinff  or  concealment 

537.  Having  dltierent  residences. 

538.  ]^on -resident  creditors. 

539.  Intending  to  remove  property  or  dispose  of  it  fraudulently. 

540.  Title  to  concealed  property. 

541.  Consti  uction  of  aflSdavits. 

542-  Liabilit}'  of  corporations — national  banks, 

543.  Property  of  decedents'  estaies. 

544.  Nature  of  altidavit. 

545.  Actual  levy. 
54fi.  Debts  not  due. 

547.   Kinds  of  property  subject — supplementary  note. 

§  530.  I  suppose  the  statutory  basis  for  attachment  juris- 
diction is  as  full  in  Illinois  as  anywhere,  and  so  I  state  this- 
as  an  ensample  or  standard  for  the  adjudications 'which  it  is 
the  primary  purpose  of  this  work  to  set  out  and  explain,  so 
far  as  they  relate  direetlj'  to  jurisdiction,  and  not  merely  to 
procedure,  etc.     in  that  state  attachment  lies — 

"First,  where  the  dehor  is  not  a  resident  of  this  state. 

"Second,  where  the  debtor  conceals  himself,  or  stands  in 
defiance  of  an  officer,  so  that  process  cannot  be  served"  on 
him. 

"Tltlrd,  where  the  debtor  has  departed  from  this  state  with. 
the  intention  of  having  his  effects  removed  from  this  state. 

"Fourth,  where  the  debtor  is  about  to  depart  from  this  stat© 
with  the  intention  of  having  his  effects  removed  from  this 
state. 


ATTACHMENT.  513 

''Fifth,  where  the  debtor  is  about  to  remove  his  property 
from  this  state  to  the  injury  of  a  creditor. 

"'Sixth,  where  the  debtor  has,  within  two  years  preceding 
the  tiling  of  the  affidavit  required,  fraudulently  conveyed  or 
assigned  bis  effects,  or  a  part  thereof,  so  as  to  hinder  or  delay 
his  creditors. 

''Seventh,  where  the  dealer  has,  witliin  two  years  prior  to 
the  filing  of  the  affidavit,  fraudulently  concealed  or  disposed 
of  his  property  so  as  to  hinder  or  delay  his  creditors. 

"Eighth,  where  the  debtor  is  about  fraudulently  to  conceal, 
assign,  or  otherwise  dispose  of  his  projiert}^  or  effects,  so  as 
to  hinder  or  delay  his  creditors. 

"Ninth,  where  the  debt  sued  for  was  fraudulently  con- 
tracted on  the  jjart  of  the  debtor :  jyrovided,  the  statements  of 
the  debtor,  his  agent,  or  attorne}-,  which  constitute  the 
fraud,  shall  have  been  reduced  to  writing,  and  his  signature 
attached  thereto,  by  himself,  agent,  or  attorney. "(a) 

What  I  take  to  be  exceptional  provisions  in  other  states  are 
(1)  where  attachment  proceedings  are  made  to  apply  to  remov- 
als from  county  to  county,  as  well  as  from  the  state;  (2,) 
where  they  are  made  an  ordinary  preliminary  to  all  suits  at 
law,  without  reference  to  residence.  Statutory  provisions, 
however,  I  have  not  space  to  notice,  further  than  they  come 
within  the  range  of  jurisdictional  adjudications.  However, 
we  may  remark  that  statutory  provisions  must  be  strictly 
pursued.  Halleij  v.  Jackson,  48  Md.  264.  And,  of  course, 
the  constitutionality  of  a  statute  authorizing  an  attachment 
may  be  set  up  in  defence.  Murphy  v.  State  ex  ret.  !")!>  Ala. 
639. 

§  531.  We  will  first  consider  the  parlies  subject  to  attach- 
ment process.  Of  these  the  leading  class  is  that  of  non-res- 
idents and  those  about  to  become  so. 

As  to  non-residence,  it  is  almost  wholly  dei^endent  upon  the 
intention,  and  if  one  changes  his  ahocXe,  sine  animorevcrteudi, 
the  intention  of  the  change  instantly  stamps  the  character 
of  non-residence  upon  it,(^)  whereas  a  temporary  absence 

(a)Kev.  St.  1874,  p.  152.  (6)Drake  on  Att.  (1866,)  i  63. 

v.l— 33 


514  ATTACHMENT. 

abroad,  with  the  mind  to  return,  does  not  usually  work  a 
change  of  domicile.  The  consequence  is  that  temporary  ab- 
sence never  gives  the  right  of  attachment  for  non-residence ; 
nor  does  the  fact  that  one  is  temporarily  within  the  jurisdic- 
tion suspend  the  right,  even  if  he  has  an  office  for  the  trans- 
action of  business  there,  while  his  actual  home  is  without  the 
state. (c) 

A  singular  case  arose  in  New  Jersey,  which  rested  on  the 
usual  principle,  that  a  wife's  residence  is  determined  by  that 
of  her  husband.  A  resident  of  New  York,  in  1859,  married, 
in  New  Jersey,  a  woman,  resident  of  the  latter  state,  who  went 
with  him,  after  the  marriage,  to  Europe — she  intending,  on 
her  return,  to  continue  her  residence  in  New  Jerse}',  as  for- 
merly, until  the  fall  of  1860.  This  was  done,  and  her  hus- 
band would  visit  her,  from  his  business  place  in  New  York 
city,  on  Saturdays,  and  return  to  his  business  usually  on 
Mondays.  An  attachment  was  levied  on  her  propertj^  in  New 
Jersey,  as  a  non-resident,  for  a  debt  she  had  contracted  before 
marriage,  and  it  was  held  she  was  a  non-resident,  notwith- 

(c)Id.  §  6P.  as  also  in  Xew  York;  so  that  one's 

It  has  been  held,  in   Illinois,  that  domicile  may  be  within  the  state 

if  one    leaves   the   state   with   his  and  yet  he  may  be  a  non-resident 

^oods,  with  only  a  conditional  in-  so  as  to  be  subject  to  attachment: 

tention  of  locating  elsewhere,  pro-  and    it  is  said  hereon  that  "  resi- 

vided  he  could  find  a  place  to  suit  deuce  implies  an  established  abode, 

him,  his  absence  does  not  cause  him  fixed   permanently  for  a  time,  for 

to  lose  his  residence,  even  if  it  con-  business    or    other    purposes,    al- 

tinues  for  years — he  having  no  set-  though  there  may  be  an   intent  in 

tied   intention   of   locating  during  the  future,  at  some  time  or  other,  to 

that  period — and  even  if  he  engaged  return   to   the   original  domicile." 

in  temporary  business  abroad.    VVil-  Morgan  ;;.  Nunes,  54  Miss.  310.    See, 

kins?).  Marshall,  80  111.  74.  also,  Frost  v.  Brisbin,  19  Wend.  14; 

On  the  other  hand,  the  fact  that  Thompson's  Case,  1  Wend.  43;  Mc- 

one  has  a  place  of  business  within  Collem  v.  White,  23  lud.  43;  Xailor 

the  state  does  not  constitute  him  a  v.  French,  4  Yeates,  241;  Farrow  v. 

resident,  so  as  to  prevent  the  issuing  Baker,  3  B.  Mon.  217;  Wells  v.  Peo- 

of  an  attachment.     Wallace  »'.  C'as-  pie,  44  111.  40. 
tie,  08  X.  Y.  370.  In  order  to  effect  a  non-residence. 

In  Mississippi,  however,  there  is  there  must  be  not  merely  an  inten- 

held  to  be  a  distinction,  as  to  the  tion  to  remove,  but  the  actual  fact 

operation   of  the  attachment  law,  of   removal   is   likewise   requisite, 

between  a  domicile  and  a  residence;  Adams  v.  Evans,  1^  Kan.  174. 


ATTACHJIRNT. 


ni5 


standing  she  had  never  domiciled  with  her  husband  in  New 
York.(c/) 

In  New  York  there  is  a  limit  placed  to  absence,  and  two  or 
three  years  is  regarded  as  constituting  non-residence,  even 
although  a  house  is  kept  up  within  the  state  all  the  while. 
Thus,  where  one  left  the  United  States  for  China,  to  take 
charge  of  three  trading  vessels,  in  which  he  held  an  interest, 
and  which  performed  several  voyages  to  different  ports  in  the 
Chinese  and  eastern  seas,  and  he  remained  absent  two  years 
and  a  half,  but  his  house  in  the  city  was  kept  up  meanwhile, 
as  before,  he  was  held  to  be  a  non-resident,  so  far  as  to  bring 
him  within  the  statute  of  non-resident  attachment;  on  the 
authority  of  Hnggart  v.  Morgan,  1  Seld.  422,  it  being  declared 
that  "the  object  of  the  statute  was  to  provide  for  cases  where 
tlie  part}'  would  probably  not  subject  himself  to  the  process 
of  our  courts,  within  a  reasonable  time  after  judgment,  by 
voluntarily  coming  witliin  its  reach."  It  was  also,  however, 
decided  that  the  nature  of  the  liusiness  in  which  the  party 
intends  to  be  or  is  engaged  may  be  looked  at,  to  determine 
the  probabilit}'  of  the  duration  of  absence. (^r) 


((Z)Hiickettstovvn  Bank  /'.^litcliell, 
4  Dutch.  '>HJ. 

(cjBurin  y;.  .Jewelt,  2  Rob.  70l. 

"The  idea  involved  is  wlictlier 
the  absence  is  of  sucli  a  chamcter 
and  so  prolonged  that  the  debtor 
cannot  be  served  with  ordinary  pro- 
cess. Mere  absence  will  not  suffice; 
the  debtor  must  have  acquired  a 
fixed  residence,  though  it  may  not 
Lave  been  intended  to  be  perma- 
nent; the  animus  rerertendi  needs 
not  to  be  abandoned."  McKiernan 
V.  Massingill,(j  S.  &  M.  375;  Alston 
«.  Newcomer,  4'2Mis8.  192;  Morgan 
«.  Nunes,  54  Miss.  .{11. 

in  Louisiana,  where  one  leased 
his  dwelling-house  and  furniture, 
and  went  abroad  to  be  absent  two 
years  or  more,  traveling  for  pleas- 
ure and  liealtli,  and  left  no  agent 
ui)on    wliom    summons    could    be 


served,  il  was  lieid.  by  a  divided 
court,  that  an  attachment  was 
rightly  issued,  and  that  the  fact  of 
the  debtor's  returning  sooner  than 
he  expected  did  not  alleel  the  pre- 
vious attachment.  Leathers  «.  Can- 
non, 27  La.  An.  523;  Wyly,  J.,  dis- 
sentinf/. 

In  North  Carolina  it  is  held  that 
if  one  voluntarily  removes  to  an- 
other state  for  the  purpose  of  dis- 
charging the  duties  of  a  United 
States  officer  for  an  indefinite  pe- 
riod, .such  duties  reijuiring  his  con- 
tinued presence,  he  is  to  be  regarded 
as  a  non-resident  for  tlie  jjurpo.se.s 
of  all  attachment,  notwitiistanding 
he  may  visit  tlie  stale,  and  may  in- 
tend to  return  some  time  in  the 
future.  Wheeler  v.  Cobb,  75  N.  C. 
21. 


516  ATTACHMENT. 

Where  a  manufacturer  and  dealer  in  carriages  for  years 
occupied  a  store-room  in  New  York  city,  over  which  he  kept  a 
furnished  apartment,  and  ate  and  slept  therein,  but  afterwards 
removed  his  family  to  Litchfield,  Connecticut,  into  a  rented 
house,  called  the  latter  his  home,  and  went  to  it  every  week, 
but  continued  to  do  business  as  before  in  New  York,  it  was  held 
that  an  attachment  would  lie  on  the  ground  of  non-residence.  (/) 
And  the  court  reiterated  the  definition  in  Chaine  v,  Wilson,  1 
Bosw.  073,  that  "a  defendant,  whose  family  occupy  a  dwell- 
ing-house in  another  state,  hired  by  him,  and  who  habitually 
passes  the  night  of  each  day  and  the  Sabbath  with  his  family, 
is  a  non-resident.  Whether  a  man's  absence  from  his  fam- 
ily be  for  eight  hours  in  eaqh  day  or  six  days  in  each  week, 
if  he  has  a  family  living  in  a  neighboring  state,  to  whom  he 
resorts  for  comfort,  relaxation  and  repose,  and  with  whom  he 
abides  whenever  the  immediate  demands  of  his  business  upon 
his  attention  will  permit,  whenever  sickness  detains  him  from 
conducting  that  business,  and  when  those  days  successively 
return  on  which  business  ceases  and  man  rests  from  his  labor 
he  resides  in  such  neighboring  state,  there  (in  every  proper 
sense,  as  understood  no  less  by  those  who  are  learned  in  the 
law  than  by  the  common  intelligence  of  every-day  life)  is  his 
home.  Where  one  has  a  home,  as  that  term  is  ordinarily 
used  and  understood  among  men,  and  he  habitualh'  resorts 
to  that  place  for  comfort  and  rest,  relaxation  from  the  cares 
of  business,  and  restoration  to  health,  and  there  abides  in  the 
intervals,  when  business  does  not  call,  that  is  his  residence, 
both  in  the  common  and  legal  meaning  of  the  term." 

It  is  held,  in  Mississippi,  that  it  is  actual  residence,  and 
not  domicile,  which  the  statute  has  in  view,  and  so  an  absent 
debtor  must  keep  moving  about  to  avoid  the  eft'ect  of  the 
attachment  statute  fixing  him  as  a  non-resident  without  any 
regard  to  his  intentions.  The  court  sa}^  in  defence  of  the 
rule :  "Of  what  consequence,  looking  to  the  object  of  the  law, 
is  it  to  the  creditor  that  his  debtor  has  a  domicile  in  this  state 
if  he  himself  remains  for  years,  perhaps,  out  of  its  jurisdiction, 

{/)Murpliy  V.  Ikikiwiii,  41  How.  Pr.  27(i. 


ATTACHMENT.  517 

residing  actually  and  personally  in  another  state,  and  upon 
whom  process  cannot  be  served  in  any  of  the  modes  pre- 
scribed by  statute '?  But  this  reason,  it  may  be  said,  would 
apply  equally  to  the  case  of  a  debtor  merely  traveling  abroad. 
A  man,  so  far  as  this  law  is  concerned,  may  travel  without 
apprehension,  but  the  moment  he  ceases  to  sustain  the  char- 
acter of  a  traveler,  and  for  purposes  of  education  or  business 
takes  up  a  fixed  though  temporary  abode,  he  becomes  for  the 
time  being,  in  the  eye  of  the  law,  a  non-resident  of  the  state, 
and  liable  as  such  non-resident  to  have  his  property  which  he 
has  left  behind  him  attached  for  the  payment  of  his  debts. 
There  is  nothing  unreasonable  in  this  rule.  On  the  contrarj^ 
while  extending  all  due  indulgence  to  the  love  of  travel,  it 
shows  no  more  than  a  proper  regard  for  the  claims  of  domes- 
tic justice.  "(^) 

Wliere  an  attachment  is  begun  against  a  non-resident  it  is 
not  discharged  by  the  defendant  becoming  a  resident  during 
the  pendency  of  the  suit. (A) 

§  532.  Where  a  claim  is  a  joint  one,  and  one  of  the  joint 
debtors  is  a  non-resident,  the  writ  of  attachment  lies  against 
him  provided  the  debt  is  a  joint  and  several  one,  otherwise 
not ;  and  it  is  sometimes  provided  by  statute  that  all  joint 
debts  are  also  several,  even  if  not  so  expressed  in  the  note  or 
other  evidence  of  indebtedness. (J)  But  this  docs  not  apply  to 
a  partnership  where  one  member  of  tlie  firm  is  a  non-resi- 
dent, since  partnership  liabilities  are  always  joint. (j)  If  a 
sheriff  levies  an  attachment  on  the  whole  of  the  firm  property, 
instead  of  upon  the  debtor's  interest  therein  merely,  he  may 
be  held  as  a  trespasser.  Luddlnf/ton  v.  Bell,  77  N.  Y.  13H. 
And,  if  the  firm  is  insolvent,  the  levy  is  ineffectual,  even 
when  the  debtor's  interest  only  is  taken.  Sloanc  v.  I/nulsni/, 
42  N.  Y.  Superior  Ct.  399.  And  it  is  held  that  a  lirm  credit 
cannot  be  attached  for  the  individual  debt  of  one  of  the  part- 
ners. Sweet  V.  Recul  12  E.  I.  121  ;  People's  Bank  v.  Shri/orL; 
48  Md.  427. 

(.9)Alston  V.  Newcomer,  42  Miss.  (2)C;oniin-rs  v.  Swiiiii,  5  Kan.  liHi. 

293  ( /)I{einiii.ij;l()n   f>.   E.\i)re.s3   Co.   S 

(/t)Lainncr  v.  Kdloy,  W  Knii.  :',\:',.      IJ.  1.  -iO!t. 


518  ATTACHMENT. 

§  533.  Mere  absence,  without  non-residence,  may  be  made 
a  ground  of  attachment  by  statute  where  the  absence  is  such, 
as  that  "tlie  ordinary  process  of  the  law  cannot  be  served  on 
him."  Unless  the  length  of  time  be  prescribed  by  statute, 
as  in  Kentucky,  where  it  has  been  fixed  definitely  at  four 
months,  there  is  always  difficulty  in  defining  the  absence 
which  will  suffice  to  justify  an  attachment.  Where  there  is 
a  definite  time,  tlie  leaving  home,  and  not  the  crossing  the 
boundary  line  of  the  state,  is  held,  in  Kentucky,  to  be  the 
initial  pohit  of  reckoning;  so  that,  where  one  started  to  leave 
the  state,  but  was  detained  within  the  state  four  days  by  a 
casualty,  and  attachments  were  issued  exactly  four  months 
from  the  time  he  started,  it  was  decided  the  attachment 
would  \ie.(k)  The  Missouri  court  say,  in  regard  to  absence, 
under  a  statute  not  prescribing  a  definite  period :  "While  it  is. 
not  admitted  that  every  casual  and  temporary  absence  of  the 
debtor  from  his  place  of  abode,  which,  from  the  brief  period 
of  his  aljsence  may  prevent  the  service  of  a  summons,  is  a 
legal  ground  for  issuing  an  attachment  against  his  property, 
it  is  difficult  to  define  the  character  and  prescribe  the  dura- 
tion of  the  absence  which  shall  justify  the  use  of  this  process. 
It  may  be  asserted,  however,  that  where  the  absence  is  such 
that  if  a  summons,  issued  uf)on  the  day  the  attachment  is 
sued  out,  will  l)e  served  upon  the  defendant  in  sufficient  time 
before  the  return  day  to  give  the  plaintiff  all  the  rights  which 
he  can  have  at  the  return  term,  the  defendant  has  not  so 
absented  himself  as  that  the  ordinary  j^rocess  of  law  cannot 
he  served  upon  him.  "  *  «  *  *  j^  construing  the 
statute  it  is  not  allowable  to  extend  its  operation  to  cases 
which  are  not  within  the  evil  it  was  designed  to  remedy.  It 
is  a  statute  under  which  much  oppression  may  be  practiced, 
and  the  legislature  have  felt  the  necessity  of  throwing  guards 
around  those  against  whom  it  may  be  employed.  If  this 
court  should  sanction  its  use  in  a  case  not  within  the  true 
scope  and  spirit  of  the  act,  upon  the  supposition  that  it  may 
be  brought  within  its  letter  to  that  extent,  the  precautions 

(/i;)Spalding  v.  Simnis,  4  Met.  2^').     See  note  (e),  supra. 


ATTACHMENT.  5J9 

taken  by  the  legislature  to  prevent  the  abuse  of  the  process 
■would  be  useless  to  the  injured  party.  "(Z) 

§  534,  But  sometimes  the  jurisdiction  is  made  to  depend 
on  the  intention  of  the  party  to  avoid  service  of  process,  and 
this,  of  course,  renders  the  mere  matter  of  duration  altogether 
immaterial.  And  herein  it  is  held  that  whether  a  debtor 
has  withdrawn  himself  from  his  creditors  with  a  view  to  elude 
process  and  evade  their  demands  is  a  question  of  fact  for  the 
jury.(m)  The  intent  is  not  to  defraud  creditors,  but  only  to 
avoid  process,  which  is  considered.  And  the  general  princi- 
ple on  which  it  is  to  be  determined  is  thus  stated  by  the  New 
York  court:  If  the  debtor,  "finding  himself  irretrievably 
involved,  so  that  his  failure  must  soon  happen,  has  desired 
to  be  out  of  the  way  of  his  creditors  at  the  time  it  should 
happen,  though  he  has  left  all  his  property  behind  him,  and 
though  he  was  aiming  to  get  into  other  business,  by  means 
of  which  he  might  ultimately  retrieve  himself,  the  inference 
may  very  properly  be  drawn  that  he  has  departed  the  state 
with  intent  to  avoid  the  service  of  a  summons,  "(w) 

§  535.  Yet  in  some  states  the  intention  is  distinctly  defined 
by  statute  to  be  a  design  to  defraud  creditors,  in  which  case 
the  intention  merely  to  avoid  process  is  immaterial,  so  long 
as  it  does  not  tend  to  show  a  positive  design  to  defraud.  This 
is  so  in  Pennsylvania,  where,  however,  suspicious  circum- 
stances are  held  sufficient  to  show  the  intention,  even  where 
it  is  disavowed,  the  absence  explained,  and  a  return  actually 
made.  Thus,  in  a  case  cited  by  Drake,  in  his  work  on  Attach- 
ment, a  writ  was  issued  on  an  affidavit  of  design  to  defraud 
creditors.  The  defendant  returned  and  defended  against  the 
suit,  urging  his  declaration,  prior  to  his  departure  and  his 
return,  as  disproof  of  the  allegation  of  fraudulent  design. 
But  this  was  met  by  i)roof  that  he  had  refused  to  be  seen  by 
his  creditors  just  previous  to  his  departure ;  that  he  had  left 
clandestinely  at  night;  had  borrowed  a  small  amount  of 
money  on  the  road,  and  had  ordered  letters  sent  to  him  under 
another  name.     On  these  facts  the  attachment  was  sustained 

(?>Kingsland  v.  Worsham,  15  Mo.  {m)Viich  »>.  Waito,  r,  Conn.  12L 

ggj  {/i)Morgan  v.  Avery,  5  JJarl).  664. 


520  ATTACHMENT. 

against  him.(o)  The  Louisiana  court,  in  a  similar  case,  said : 
"It  is  true  that  the  defendant  has  shown  that  he  has  been  a 
resident  of  the  city  for  about  five  years,  and  carried  on  busi- 
ness as  a  merchant :  that  during  that  time  he  has  been  in  the 
habit  of  absenting  himself  every  year  during  the  sickly  sea- 
son, leaving  an  agent  or  clerk  to  attend  to  his  business.  We 
feel  no  hesitation  in  saying  that  if  no  suspicious  circumstances 
existed  we  should  concur  in  the  opinion  of  the  first  judge  in 
dissolving  the  attachment ;  but  the  case  of  the  defendant  is 
that  of  a  person  charged  with  having,  by  the  aid  of  one  of 
the  tellers  of  the  bank,  actually  defrauded  it  of  the  sum  of 
uj^wards  of  sixty  thousand  dollars;  a  circumstance  which,  in 
our  opinion,  removes  every  suspicion  of  an  intended  deviation 
from  the  truth  in  the  president  of  the  bank,  who  made  the 
affidavit  required  by  law.  Notwithstanding  this,  if  the  de- 
fendant had  made  his  intention  to  return  evident  he  would 
be  entitled  to  relief;  but  the  consequences  he  had  to  appre- 
hend, from  the  gross  fraud  he  is  charged  with  having  commit- 
ted on  the  bank,  rendered  his  intention  to  avoid  them  by  flight 
so  probable  that  the  mere  circumstance  of  his  return  does  not 
totally  destroy  the  presumption.  Men  often  do  that  which 
they  once  intended  not  to  do.  By  sustaining  the  attachment 
the  bank  may  possibly  obtain  a  portion  of  the  large  sum  of 
which  they  had  been  defrauded.  By  discharging  it  the  de- 
fendant will  be  enabled  to  defeat  the  aids  of  justice,  so  far  as 
he  is  concerned. "(j>)  It  is  manifest  that  this  rather  rests  on 
the  ground  of  necessity,  than  the  attachment  statute,  and  that 
substantial  justice  was  awarded  at  the  expense  of  the  legal 
requirements  in  the  case. 

§  536.  Absconding  and  concealing  himself  are  governed 
by  similar  rules  as  to  a  debtor's  liability  to  attachment,  and 
the  intent  must  be  to  evade  process  or  defraud  creditors. 
In  Maryland  it  is  held  that  if  one  secretly  removes  from  his 
usual  place  of  business,  with  the  intention  to  evade  the  pay- 
ment of  his  just  debts,  or  to  injure  or  defraud  his  creditors,  he 
will  be  regarded  as  absconding,  although  he  may  not  have 

('>)  Drake  on  Att.  (1866,)  §,44.  (^)Canal  &  Banking  Co.  ».  Comlj, 

1  Robinson,  231. 


ATTACHMENT.  521 

left  the  state. (5-)  In  Illinois,  where  the  court  below  refused 
to  give  the  following  instruction,  it  was  held  error,  namely : 
"It  is  concealment  to  avoid  service  of  process,  no  matter 
whether  for  an  hour,  a  day,  or  a  week ;  whether  with  a  view 
to  defraud  creditors,  or  merely  to  have  time  to  make  a  dis- 
position, lawful  or  otherwise,  of  his  property  before  his  cred- 
itors get  at  him.  It  is  placing  himself  designedly  so  that 
his  creditors  cannot  reach  him,  which  constitutes  conceal- 
ment under  the  statute. "(r) 

§  587.  If  a  married  man  has  two  places  of  residence  at 
different  seasons  of  the  year,  that  one  will  be  regarded  as 
Lis  domicile  which  he  himself  selects  or  describes,  or  consid- 
ers to  be  his  home,  or  which  appears  to  be  the  center  of  his 
affairs,  or  where  he  votes  or  exercises  the  rights  and  duties 
of  a  citizen,  (s) 

§  538.  A  non-resident  creditor  has  the  right  to  employ 
attachment  process  for  any  of  the  causes  prescribed  by  stat- 
ute, as  well  as  a  citizen. (^) 

§  539.  Intending  to  remove  or  dispose  of  property  fraud- 
ulently is  a  common  ground  of  attachment  proceedings.  But 
a  statute  in  regard  to  removing  property  must  not  be  under- 
stood to  apply  to  vessels,  which,  from  the  nature  of  their 
occupation,  must  necessarily  be  taken  out  of  the  state. (//) 
And,  moreover,  it  is  not  to  be  applied  to  a  case  where  only  a 
portion  of  a  debtor's  property  is  removed,  leaving  visibly 
ample  property  of  a  permanent  character  to  satisfy  his 
debts ;('/.')  but  if  the  removal  of  a  part  only  is  designed  to  de- 
fraud or  delay  creditors  an  attachment  will  lie  thereon. (/r) 
Also,  it  is  held  that  a  concealment  may  be  effected  by  con- 
<;eab"ng  facts  and  circumstances,  as  well  as  by  concealing  the 
goods  themselves  ;(.x)  any  deception,  I  suppose,  by  wliich 
the  ownership  may  be  obscured,  or  the  creditor  baffled,  full- 
ing thus  within  the  explanation.     But  threats  to  make  a  law- 

(9)Stoulfa  «.  Niple,  40  Md.  477.  (//jllusscll  /).  Wilson.  Is  La.  ;{(;7. 

(r) Young  «.  Nelson,  25  III.  :.(ii;.  («).M(.ntii-ue  v.  (Ja.l.lis,  :{7   Miss. 

(sjChariton    Co.    v.    Mobcriy,    r/.i      4n(; ;  Stnic  »,.  Mom.s,  ;-iO  la.  2(i(;. 


Mo.  242. 


(,r)'l':ivlnr  /i.  .MyiTs,  MS  Mo.  S2. 


(OWard  V.  McKen/.ie,  :V.>.  Tc.x.  2117.  (.r)l'nwc'!l  v.  Matlhcws.  Id  Mo 


522  ATTACHMENT. 

ful  assignment  is  not  a  concealment  within  the  meaning  of 
the  statutes,  Q/)  although  mere  threats  to  make  an  assignment 
are  construed  to  be  fraudulent,  unless  it  plainly  appears  that 
the  intention  of  the  debtor  is  to  execute  a  proper  assignment 
for  the  benefit  of  creditors.  Moreover,  whatever  purpose 
would  avoid  a  general  assignment,  if  declared  in  writing  and 
inserted  in  the  assignment,  ought,  when  verbally  avowed  by  a. 
debtor  to  be  the  design  of  an  assignment  contemplated,  to  be 
regarded  equally  fraudulent. (^)  An  unfair  preference  in  a 
voluntary  assignment  may  furnish  the  basis  of  an  attachment,. 
(Stevens  v.  Helpman,  29  La.  An.  634,)  although  a  fair  assign- 
ment for  the  benefit  of  creditors  may  be  sustained  as  against 
an  attachment,  (TJiorington  v.  Gould,  59  Ala.  461.) 

§  540.  As  to  the  kind  of  title  to  concealed  property  which 
will  justify  attachment,  the  New  York  court  has  decided  that 
the  statutes  mean  any  property  in  the  defendant's  possession 
to  which  he  claims  title,  although  his  title  may  be  imperfect, 
or  clearly  bad,  as  the  design  to  defraud  may  be  as  clearly 
apparent  in  concealing  embezzled  property  as  in  concealing 
property  really  belonging  to  the  debtor. (a) 

§  541.  The  court  in  Tennessee  seems  to  be  quite  liberal  in 
construing  af&davits  for  attachment.  In  one  case  where 
under  the  statute  providing  that  "if  a  debtor  or  defendant  in 
any  suit  or  judgment  is  removing,  or  about  to  remove,  him- 
self or  his  property  beyond  the  limits  of  the  state"  an 
attachment  may  issue,  it  was  alleged  that  a  certain  debtor 
was  owner  and  master  of  a  steam-boat,  and  that  he  was  about 
to  remove  said  steam-boat  beyond  the  limits,  [permanentlj',  I 
suppose,]  the  court  held:  "The  first  objection  to  this  attach- 
ment is  that  the  affidavit  designates  a  particular  piece  of 

(.^) Wilson  V.  Britton,  li  Abb.   Pr.  tliough  a  violation  of  the  former. 

34.  Stanley  v.  Sutherland,  5-4  Ind.  340. 

(£)Gaslioire  v.  Apple,  14  Abb.  Pr.  A  mere  misappropriation  of  money, 

65.     A  violation  of   the  bankrupt  which  lawfulh" came  into  the  hands 

law,  by  sellinij;  propertj',  is  not  nee-  of  a  debtor,  will  not  justify  an  at- 

essarily  a   ground    of    attachment  tachment  on  the  ground  of  having 

under  a  state   law,  because  a  sale  fraudulently  contracted  a  debt.   Goss- 

may  be  valid  under  the  latter,  al-  v.  Com'rs,  3  Col.  46S. 
a)TreadweIl  v.  Lawler,  15  How.  Pr.  9. 


ATTACHMENT.  523 

property  only  as  being  about  to  be  removed.  We  are  in- 
clined to  think  this  statement,  if  it  stood  alone,  would  not  be 
sufficient.  The  affidavit  ought  to  use  the  words  of  the  stat- 
ute, or  it  should  exclude  the  idea  that  other  property  might 
still  be  left  by  the  defendant  within  the  jurisdiction  amply 
sufficient  to  satisfy  the  demand.  But  the  affidavit,  in  effect, 
states  that  the  defendant  is  about  to  remove  himself,  as  well 
as  his  property.  It  states  that  Newcomb  is  owner  and  mas- 
ter of  the  steam-boat  Belle  of  Nashville,  and  that  he  is  about 
to  remove  said  steam-boat  beyond  the  limits  of  the  state. 
The  statement  is  equivalent  to  the  assertion  that  he  is  about 
to  remove  himself.  He  is  master,  and  if  he  removes  his 
boat  he  also  removes  himself.  His  relation  to  the  boat,  as 
master,  connects  his  own  removal  necessarily  with  the 
removal  of  the  boat."(^)  A  fresh  and  vigorous  implication, 
certainly.  And  in  Georgia,  likewise,  it  has  been  held  thnt 
where  a  non-resident  is  removing  his  goods  through  a  county, 
an  attachment  may  be  levied  thereon,  under  the  statute 
authorizing  such  issue,  when  one  is  "removing  out  of  the 
county,"  on  the  ground  that  the  law  gives  every  non-resident, 
for  the  purposes  of  litigation,  a  locus  in  the  county  where  he 
is  found,  and  that  the  place  for  the  return  of  the  process  is 
the  test;  and  so,  if  one  is  going  through  and  out  of  the  county, 
he  may  fairly  be  said  to  be  removing  out  of  that  county. (r) 
With  all  due  deference,  I  may  be  permitted  to  say  that  this 
seems  to  me  to  strain  a  law  about  as  far  as  it  will  go  without 
breaking. 

§  542.  As  to  corporations,  an  early  case  in  New  York  held 
that  they  were  not  liable  to  the  process  of  attachment,  but 
the  general,  perhaps  now  the  universal,  doctrine  is  that 
they  are  liable (>/)  as  any  other  debtors.  A  corporation  is 
domestic  where  its  cliarter  is  granted,  and  foreign  everywhere 
else;  and  if  chartered  in  two  or  more  states  it  is  domestic  in 
each.(<<)  In  Ohio  a  domestic  corporation  may  be  proceeded 
against  in  a  county  of  the  state  where  it  lias  no  otticc  or  place 

(6)Runyan  v.  Morgan,  7  Hnmpl..  (d)See   Dmke  on  Alt.   ^   7!),  and 

219.  nole. 

(c)Johnson  v.  Lowry,  47  Ga.  5(52.  (^ilbid,  ?  80. 


524  ATTACHMENT. 

of  business,  as  a  non-resident  of  such  county.  (/)  And  a 
non-resident  lessee  of  a  railroad  liable  to  be  sued,  as  was  the 
company,  is  also  liable  to  be  proceeded  against  by  attach- 
ment. ((/) 

A  national  bank  is  held  to  be  a  foreign  corporation,  even 
in  the  state  where  it  is  located,  since  it  is  incorj)orated  by  act 
of  congress,  and  is,  therefore,  liable  to  attachment  as  a  non- 
resident, (/t)  Unsound  doctrine,  I  think.  And  in  New  York, 
where  this  decision  was  made,  it  has  latterly  been  decided 
that  even  where  a  national  bank  is  located  in  another  state, 
and  has  property  within  the  state  of  New  York,  no  attach- 
ment can  issue  against  it  until  a  final  jurlgment  has  been 
rendered  against  it.  llhorer  Y.Nat.  Bank,  14  Hun.  126;  Cent. 
Nat.  Bank  v.  Richland  Nat.  Bank,  52  How.  Pr.  130.  And 
so  with  an  insurance  company  created  by  the  laws  of  Great 
Britain  and  doing  business  in  the  United  States. (i) 

Attachment  is  the  only  method  of  suing  a  foreign  corjDora- 
tion;  and  so,  where  in  Massachusetts  an  action  was  begun 
against  a  railroad  company  established  in  Michigan,  and 
service  was  made  on  the  treasurer  of  the  coriDoration  in  Bos- 
ton, it  was  held  not  maintainable.  (;) 

§  543.  Property  of  an  estate  in  the  hands  of  an  executor  or 
administrator  may  be  made  liable  to  attachment  in  Georgia. (A;; 
But  the  general  rule  is,  probably,  that  this  cannot  be  done 
except  where  an  executor  or  administrator  has  made  himself 
personabl}^  liable;  as,  for  example,  if  he  has  entered  upon  a 
leasehold  held  by  his  testator  or  intestate  in  his  life-time,  or 
received  the  rents  or  prohts  thereof.  (/) 

§  544.  Sometimes  the  affidavit  is  regarded  as  jurisdictional ; 
at  others,  not.  Wherever  it  is  not  jurisdictional  it  may  be 
amended  without  ousting  the  jurisdiction,  otherwise  it  is  not 
amendable.* 

(/)Cliampioii     Machine     Co.     v.  (/.jlloUowa}'    ».    Chiles,    40    Ga. 

Huston,  24  O.  St.  503.  34(3. 

(.9) Breed  v.  Mitchell,  48  Ga.  533.  {l)Drake  on  Att.  ^  82;  Bryant  r. 

(7i)Cooke    V.    National  Bank,   50  Fussell.  11  R.  I.  286. 

Barb.  341.  *ln  Iowa  "  reasonable  grounds  of 

(OMyer  v.  Ins.  Co.  40  Md.  590.  belief"  will  justify  an  affidavit.  (C:.- 

(j) Andrews  v.  R.  K.  99  Mass.  534.  rey  v.  Gunnison,  51  la.  204;)  while 


ATTACHMENT.  525 

§  545.  As  a  matter  of  course  a  levy  is  essential  to  jurisdic- 
tion which  is  in  rem,  and  embraces  so  much  property  as  the 
original  levy  includes,  and  no  more.(/«) 

§  546.  An  attachment  may  be  authorized  for  a  debt  not  yet 
due,  on  proper  affidavit,  where  time  only  is  wanting  to  fix  an 
absolute  indebtedness. [ii] 

§  547.  In  regard  to  the  species  of  property  liable  to  attach- 
ment, the  general  rule  is  that  w^hatever  is  liable  to  execution 
is  liable  to  attachment,  and.  rice  rcma,  whatever  is  exempt 
from  execution  is  exempt  from  attachment ;  but  this  is  so 
completely  statutory  in  the  different  states  that  I  do  not  think 
any  attempt  to  enumerate  the  classes  of  real  and  personal 
property  which  may  be  attaclied  would  be  at  all  a  j^rofit- 
able  outlay  of  time  and  labor.  Sometimes  even  equitable 
rights  are  attachable;  as,  for  instance,  an  equitable  title  to 
land,  where  another  than  the  debtor  holds  the  legal  title,  has 
been  held  subject  to  the  process.  Tbe  chief  perplexities  arise 
in  garnishment  proceedings,  of  which,  in  logical  order,  we 
will  treat  in  the  next  chapter. 

in  Illinois  and  some  other  states  the  iiey  residini;,'  in  it,  anil  at  a  tlit;tance 

atHdavit  must  be  positive.  i'rom  the  parties  to  the  inmsaotion, 

In  Alahr.ma  the  affidavit  must  l)e  can  absolutely  know  that  tlie  debt  is 

positive  in  its  averments,  and  con-  still  due  and  unpaid,  since  payment 

form  to  the  .statute,  and  if  it  is  de-  may  have  been  made  since  the  last 

fective  it  cannot  be  amended.     Staii,-  cummunieation   with  his  client,  so 

gers  V.    Washington,   .'iti  Ala.    -22'),  that  it  is  proper  to  aver  in  llie  afii- 

Shieldt).  Dothard.  .Of)  Ala.  51t").    Hut  davit  Ihat  the  affiant   "is  informed 

a  relaxation   seems  to  be  allowed  and  l)elieves,  and  therefore  ntntes." 

when;  a  resident  attorney  makes  th(;  MiUhell  v.  I'itts,  GI  Ala.  222. 

artidavit  in  lieliall'  of  a  non-resid(;n1  (///)('i.iinccti(  tit  i-.  Caldwell.  1  V<i\. 

plamtitf,  on  the  ground  that  "where  .'i.!! . 

both  parties  reside  out  of  the  state  («)Bra(e  v.  (;ra(iy,  :J(i  la.  .O'lo. 
it  is  almost  impossible  that  an  attor- 

si;i'i,i;.mi;n'i  AUY  Norics. 

As  a  kind  of  addenda.  I  add  I  he  on    which  an   attachment   may    be 

following     items,    which    lend    to  issued  m  aid.     Montery  Co.  f.  Mc- 

inakc  the  t(!.\t  more  complete:  Kec,  r,l  Cal.  2:>:>;    San   P^rancisco  v. 

1.  Onw/uniudMediiessanalturA-  IJrader,   f.O  Cal.   ^W:    lT:'.liniway  w. 

ment    may    he    baned.     An    official  Davis,  :!.■{  Cal.  Hi  1. 

liond  is  an  obligation  for  the  direct  In  .\rkansas  an  attachment    may 

payment  (,f  money  in  an  action  up-  issue  in  aid  of  an  c.juilable  suit,  as 


526 


ATTACHMENT. 


well  as  of  a  suit  at  law.  American 
Land  Co.  v.  Grady,  33  Ark.  550. 

In  Iowa  an  attachment  will  lie 
against  a  tenant  for  rent.  Daniels 
«.  Logan,  47  la.  395;  Rotsler  v. 
Kotsler,  46  la.  189.  But  usually  an 
ordinary  attachment  cannot  he  is- 
sued in  such  a  case,  altl^nmh  a 
distress  warrant  may.  which  is 
somewhat  in  the  nature  of  an  at- 
tachment, or  perhaps  rather  of  a 
summary  lien.  Attachment  lies 
for  rent  in  Arkansas  also,  and  may 
be  specific  or  general,  and  he 
brought  before  the  rent  is  due. 
Tignor  v.  Eradley,  32  Ark.  1^1. 
In  Alabama  this  is  .subject  to  ordi- 
nary defences.  Dryer?;.  Abercrom- 
bie,  57  Ala.  497.  And  by  attachment 
mortgaged  crops  may  be  levied  on 
in  the  possession  of  the  mortgagee 
of  the  tenant,  for  rent  due.  Hud- 
son et  al.  V.  Exec'rs,  57   Ala.    GU9. 

An  attachment  is  no  remedy  for 
the  recovery  of  specific  property. 
Gates  «.   Bennett,  33  Ark.  475. 

Also,  one  advancing  money  for 
raising  a  crop  can  enforce  his  claim 
by  attacliDient,  in  a  manner  simi- 
lar to  that  available  on  the  part  of 
a  landlord.  Grady  v.  Hall,  59  Ala. 
341.  The  crop  lien,  for  advances, 
begins  at  the  time  of  the  advance. 
Carter f.  Wilson,  61  Ala.  434. 

In  Alabama  any  civil  action, 
■whether  founded  on  contract  or 
tort,  as  for  an  assault  and  battery, 
can  be  commenced  b}'  attachment 
under  the  statute.  Hadley  v.  Bry- 
ers,  58  Ala.  139. 

2.  What  kinds  of  property  are 
liable.  In  addition  to  the  statement 
of  the  general  lulc  in  the  text  we 
remark:  In  Kansas  it  is  held  that 
the  interest  of  the  owner  of  lots  in  a 
town  site  on  the  lands  of  the  United 
States  is  liable  to  attachment,  not- 
withstanding the  town  site  has  not 
buen   proved   up    by    the   probate 


judge  in  trust  for  the  occupants, 
according  to  the  law  of  congress. 
Fessler  «.  Haas,  19  Kan.  216. 

An  otticer  is  not  bound  to  levy  on 
property,  the  title  to  which  is  in 
doubt:  although,  if  he  does  so,  he 
cannot  voluntaril}'  recall  the  levy 
without  a  liability  to  show  sufficient 
cause  for  the  release.  Wadsworth 
V.  Walliker,  51  la.  G05. 

In  California  it  is  held  that  an 
officer  seizing  property  in  the  hands 
of  a  third  person,  must  be  pre- 
pared to  prove  not  only  the  attach- 
ment, but  the  proceedings  on  which 
it  was  based.  Horn  fi.  Corvaru- 
bias,  51  Cal.  524. 

In  a  personal  suit  against  a  cap- 
tain or  owners  of  a  vessel  it  is  held 
that  an  attachment  of  the  vessel  in 
aid  may  be  issued,  in  Louisiana. 
Hacberle  v.  Barringer,  29  La.  An. 
410. 

An  iillachment  cannot  he  levied, 
in  Alabama,  on  a  landlord's  lien 
for  his  debt,  since  it  is  not  liable  to 
execution,  t^larnes  v.  Allen,  58 
Ala.  317.  And  so,  where  equitable 
interests  are  not  subject  to  execu- 
tion, they  cannot  be  attached  at 
law.  Hillniau  «.  Werner,  9  Heisk. 
586.  And,  accordingl}',  it  is  held 
that  an  unassigned  dower  interest 
is  not  subject  to  attachment  in  an 
action  at  law.  Rausch  »>.  Moore, 
48  la.  611  ;  Seevers,  J.,  dissentinrj. 
And  it  is  .so  as  to  curtesy  initiate. 
Greenwich  Xat.  Bank  v.  Hall,  11  K. 
I.  124. 

3.  As  to  parties.  A  count}'  may 
be  a  plaintiP-",  (State,  use,  etc.,  v. 
Fortinberry,  54  Miss.  316;)  and  a 
state,  after  making  a  demand  of  the 
debtor.     State  v.  Morris,  50  la.  203. 

In  Missouri,  a  receiver  cannot 
bring  attachment  against  the  sure- 
ties on  an  official  bond,  their  liabil- 
ity not  being  a  "debt"  within  the 
mcaninn'  of  the  statute  allowing  re- 


ATTACHMENT. 


527 


•ceivers  to  bring  attachment  suits. 
State  ex  rel.  v.  Ganibs,  68  Mo.  289. 

As  to  the  rehition  of  a  plaintiff  in 
attachment  to  other  lien  creditors, 
such  plaintiff,  claiming  a  lien  on  a 
mortgage  debt  by  reason  of  an  at- 
tachment, is  a  necessary  party  de- 
fendant to  a  bill  to  foreclose  such 
mortgage.  Pine  v.  Shannon,  30  N. 
J.  Eq.  501. 

4.  Notice.  Where  an  attachment 
suit  is  commenced,  tlie  fact  that 
afterwards  a  personal  summons  maj^ 
be  served,  and  actually  is  served, 
-does  not  annul  the  attachment. 
Grubbs?).  Cotter,  7  Bax.  (Tenn.)432. 
And,  where  personal  service  is  thus 
had,  a  dissolution  of  the  attachment 
will  not  oust  the  jurisdiction  of  the 
<jourt,  as  otherwise  it  would  do. 
Hills  V.  Moore,  40  Mich.  211.  And 
.so  if  defendants  personally  appeal, 
without  service,  (Bryant  v.  Hendee, 
40  Mich.  543,)  the  appearance  being 
general,  and  not  special  merely. 
Talpey  v.  Doane,  3  Col.  24. 

5.  Death  of  party.  Unless  where 
changed  by  statute,  the  common - 
law  rule  that  an  execution  cannot 
issue  after  the  decease  of  the  judg- 
ment debtor  prevails  in  attachment. 
Welch  t).  Battan,  47  la.  147.  In 
Alal)ama  the  death  of  the  debtor  in 
attachment  d';es  not  have;  this  ell'ect 
unless  he  has  left  an  insolvent  es- 
tate. Woolfolk  ».  Ingram,  53  Ala. 
11. 


6.  Effect  of  bankruptcy  or  uisolr- 
ency.  An  attachment  lien  is  not 
divested  except  in  a  manner  pro- 
vided by  the  bankrupt  law  itself, 
and  so  a  composition  in  bankruptcy, 
without  a  conveyance  of  the  prop- 
erty to  an  assignee,  does  not  divest 
it.  Peck  «.  Jenness,  7  How.  (U.S.) 
«12;  Morgan  v.  Campbell,  22  Wall. 
381;  Sage?).  Heller,  124  Mass.  213; 
Cunningham  v.  Hall,  (J!t  Me.  3.54; 
contra,  Miller  v.  McKenzie,  43  Md. 
354.  But  an  assignment  in  bank- 
ruptcy, under  the  late  law,  within 
four  months,  dissolved  the  attach- 
ment. Linder  v.  Brock,  40  Mich. 
G18.  But  this  period  was  essential. 
Gillett  V.  McCarthy,  23  Kan.  608. 

7.  Nature  of  the  lien.  An  attach- 
ment creates  a  lien  superior  to  any 
that  may  be  subsequently  created, 
either  by  the  act  of  tlie  defendant  or 
the  operation  of  law,  although  the 
debtor  may  sell  his  interest  in  land 
attached,  sul)ject  to  the  attachment 
lien,  (Griggs  B.  Banks,  5!)  Ala.  311,) 
since  the  levying  of  an  attachment 
on  lands  does  not  divest  the  owner's 
title,  nor  dispossess  him.  Smith  ». 
Collins,  41  Mich.  173. 

8.  Disqualification.  If  a  judge  is 
a  stockholder  in  a  bank,  he  is  dis- 
qualified to  act  in  attachment  pro- 
ceedings wherein  the  bank  is  inter- 
ested. King  «.  Thomp.son,  59  Ga. 
380. 


528  GARNISHMENT. 


CHAPTER  XVIII. 

GARNISHMENT. 

i  548.  General  statement;. 

549.  Rights  subject  to  garnisliment. 

550.  Singular  Louisiana  case. 

551.  Cases  of  fraudulent  sales. 

552.  Assignee  of  promissory  note. 

553.  Joint  debts. 

554.  Money  in  the  hands  of  an  officer,  or  in  court — attorneys — treasur- 

ers— judgment  debtors — juror  fees. 

555.  Agents. 

556.  Executors  and  administrators. 

557.  Partnerships. 

558.  Municipal  corporations. 
550.  Private  corporations. 

5(jO.  Railroad  agents — l)ank  officers,  etc. 
5G1.  Money  deposited  with  specific  directions. 

562.  Specitic  money  in  the  hands  of  an  attorney. 

563.  Husband  and  wife. 

564.  Salaries  and  wages. 

565.  Contractors  and  employers. 

566.  Indemnity  money. 

567.  Claims  under  insurance  policies. 

568.  Guests. 

569.  Lands  fraudulently  mortgaged — fraudulent  assignments. 

570.  Consignees. 

571.  Guardian  of  spendthrift. 

572.  Set-otf. 

573.  Military  bounties. 

574.  Double  garnishment. 

575.  ElYeet  of  service  of  writ. 

576.  E.xemptions — wages. 

5}  548.  This  subject  is  very  closely  connected  with  that  of 
attachment.  In  some  states  one  branch  of  it  is  called  trustee 
process,  while  in  other  states  mere  trust  funds  are  not  liable 
to  be  taken,  unless  in  the  nature  of  a  deposit  in  bank  or  some- 
thing of  that  sort.  In  Vermont  and  Connecticut  this  is  some- 
times called  the  factorizing  process.  But  garnishment  is  the 
most  common  term,  and  will  be  most  generally  employed 


GARNISHMENT, 


.29 


liereiii.  Of  course  only  the  jurisdictional  aspects  of  the  topic 
will  be  in  order  here  for  consideration.  As  to  procedure  and 
rules  of  liability,  they  must  be  sought  elsewhere,  in  works 
of  a  scope  embracing  practice  as  well  as  the  principles  which 
govern  and  guide  the  entertaining  of  suits.  And  so  the  staple 
of  this  chapter  will  consist  chiefly  of  the  property  subject  to 
the  process  of  garnishment,  by  whatever  name  it  may  be 
called,  and  of  the  parties. 

§  549.  It  has  been  held  that  legal  rights  only  can  be 
reached  by  garnishment ;  that  is,  such  moneyed  demands  as 
might  be  recovered  in  an  action  of  debt  or  iiuhhitatus  assump- 
sit, and  also  such  property  as  would  be  liable  to  seizure  on 
execution,  (a) 


(ajGadden  v.  Fierson,  42  Ala.  371. 

In  addition  to  what  is  stated  in 
the  text,  I  present  here  a  partial 
summaiy,  as  follows : 

1.  General  Rule.  The  principle 
of  garnishment  is  stated  thus  l)y  the 
Maryland  court:  '•  The  general  rule 
is  that  the  right  of  the  attaching 
creditor  to  recover  against  the  gar- 
nishee depends  upon  the  subsLsting 
rights  between  the  garnishee  and 
the  debtor  in  the  attachment,  and 
the  test  of  the  garnishee's  liability 
is  that  he  has  funds,  properly,  or 
credits  in  his  hands  l)elonging  to  the 
debtor  for  which  tlie  latter  would 
have  a  right  to  sue,"  (Odend'Hal  v. 
Devlin,48  Md.  441 ;)  to  which  should 
properly  have  been  added  the  qual- 
ifying clause  intimated  in  the  text, 
that  the  lialjility  should  be  enforce- 
able by  execution.  The  Rhode 
Island  court  say:  "  I3y  the  decisions 
in  most  of  tlie  states  the  right  to 
attacli  by  trustee  process  is  subject 
to  the  followiug  general  rules: 
'I'hat  the  plaintiff  can  have  no 
greater  riglits  against  the  garnishee 
than  the  defendant  has:  that  he 
can  be  in  no  better  condition  as  to 
the  garnishee  than  the  defendant 
would  be  in,  if  suing,  (Drake  on 
Attachment,  ^  4r)8,  460;  Harris  «. 

v.l— 34 


Phoenix  Ins.  Co.  35  Conn.  313 ;  see, 
also.  Haven  v.  Wentworth,  Trustee, 
2  N.  H.  03;)  that  the  debt  must  be 
such  as  could  be  enforced  in  an 
action  at  law;  that  the  process  is 
limited  to  legal  debts;  that  it  must 
be  such  a  debt  due  now,  or  at  a 
future  time,  as  the  defendant  could 
himself  prosecute  at  law;  and  that 
a  mere  equitable  claim  cannot  be 
attached.  Freeman  on  lixecutions, 
§  1G2,  citing  Goddar  v.  Fierson,  42 
Ala.  370;  May  v.  Baker,  If)  HI.  S!) ; 
and  .see  the  opinion  by  the  late 
Judge  (Jol lamer  in  Hoyt  v  iSniitli, 
13  Vt.  133;  Drake  on  Attachment, 
§  f>'>l.  It  is  also  laid  down  tiial  tlie 
property  trusteed  must  be — with 
some  few  exceptions,  as,  for  exam- 
ple, hides  while  tanning  :  Dnike  on 
Attachment,  §  4(i4 — such  a-<  could, 
after  judgment  against  tin;  dcrenil- 
ant,  be  turned  over  by  the  garnishee 
to  be  taken  in  execution;  (ir,  if  a 
debt,  must  be  such  as  Ihat  tin; 
garnishee  could,  after  judgment 
against  tlie  defendant,  protect  him- 
self by  paying  it,  witiiout  waiting 
to  be  sued,  (H  Dane,  Al.ridgmcnt, 
505  ;  Drake  on  Attachment,  *  4(i3  : 
Maine,  etc.,  Ins.  Co.  «.  Weeks,  7 
Mass.  438;)  and,  as  to  the  burden 
of  proof,  the  garnishee  stands  in  t  he 


530 


GARNISHMENT. 


§  550.  A  singular  claim  arose  in  Louisiana,  to  this  effect: 
In  1863  a  transportation  company  sold  to  A.  a  steam-boat 


same  sitiiiition  as  if  the  defendant 
IkuI  sued  him.  Potter  v.  Stevens,  9 
C'lish.  ■'>:iO;  eriticisin;;  opinion  of 
.P<irso/ix,  C.  J.,  in  Webster  v.  Gage, 
2  Mass.  503 ;  see  Drake  on  Attach- 
ment, §  461."  Smith  v.  Millett,  11 
R.  1.  53").  Equitable  interest.s  uia\- 
be  reached,  sometimes,  by  a  credit- 
or's bill  in  equity,  notwithstanding 
such  may  not  be  subject  to  attacli- 
ment  or  execution.  Bresnihaii  v. 
Sheelmu,  125  Mass.  11.  However, 
in  states  such  as  Illinois,  where  by 
statute  equitable  interests  may  be 
sold  on  execution,  these  may  cer- 
tainly be  attached  or  be  taken  in 
garnishment. 

2.  Propertfi  in  tlie  Imnds  of  officers 
or  ngcnts.  Where  a  judgment  is 
rendered  against  a  county  the 
county  treasurer  cannot  be  gar- 
nished on  account  of  the  funds  in  his 
hands  belonging  to  the  county,  it 
being  a  general  rule  that  a  munici- 
palty  can  onh'  be  reached  by  m«//- 
(iamvs  to  compel  the  payment  of  a 
judgment  against  it.  Edmoudsou 
V.  De  Kalb  Co.  51  Ala.  103.  And  it 
is  so  as  to  the  states,  so  that  a  state 
treasurer  cannot  be  garnished  for 
money  owing  by  the  state  to  a  non- 
resident delator.  Loder  v.  linker, 
;Ji1  N.  J.  4!t. 

As  to  a  sheriff,  he  may  be  gar- 
nished for  a  surplus  remaining  in  his 
liands  after  having  satisfied  the 
creditors  claim;  and  this  principle 
applies  to  a  case  of  sale  under  a 
ciiattel  mortgage  where  there  is  a^ 
surplus  left  in  the  ofHcer's  hands 
after  paying  the  mortgaged  debt, 
lljifman  v.  Wetherell,  42  la.  89. 
In  Mississippi  a  constable  may  be 
garnished  for  money  he  has  col- 
lected on  execution  which  he  has 
not  paid  over  to  the  plaintiff,  (Burle- 
son V.  Milan,  56  Miss.  399;)  but  the 


general  rule,  I  am  .sure,  is  the 
opposite,  as  the  court  acknowledge.s. 
However,  the  usual  policy  is  con- 
demned by  it,  on  the  forcible  ground 
that  the  officer's  relation  to  the 
plaintiff  in  execution  is  precisely 
the  same  before  the  return  day  of 
the  execution  as  it  is  to  the  defend- 
ant for  whom  he  holds  a  surplus  of 
money  after  sati.^fving  an  execution 
against  him.  The  doctrine  of  ^lis- 
sissippi  is  sustained  bv  Woodhridge 
V.  ]\Iorse,  5  N.  H.  519  ;  Hurlburt  v. 
Hicks,  17  Vt.  193 ;  Gray  v.  Maxwell, 
50  Ga.  108 ;  New  Haven,  etc.,  Co. 
■IK  Fowler,  28  Conn.  103. 

AVhere  money  and  valuables  were 
taken  from  a  prisoner,  they  were 
held  liable  to  gainishment  in  the 
hands  of  the  officer,  in  a  civil  action 
brought  again.st  the  prisoner  by  the 
party  who  had  lost  the  property. 
Keifsnyder  v.  Lee,  44  la.  101. 

An  agent  who  has  money  entrust- 
ed to  him  b}'  his  principal,  to  pay  a 
debt  due  to  a  particular  person,  may 
be  garnished  thereon  at  the  instance 
of  other  creditors,  ignorant  of  the 
instructions  of  the  principal,  in 
Kansas.  Center  r.  McQuesten,  Is 
Kan.  476. 

As  to  bailcft,  it  has  been  held  in 
^linnesota  that  the  owners  of  a  pri- 
vate boom,  who  have  exclusive  pos- 
session and  control  thereof,  ma\-  be 
garnished,  as  to  logs  placed  in  their 
boom  for  safe-keeping,  for  pay. 
Farmers',  etc.,  Bank  v.  Wells.  2.! 
Minn.  476. 

3.  Municipalities.  Besides  what 
was  stated  above,  we  remark,  fur- 
ther, that  where  a  town  has  been 
divided  into  school  districts,  neither 
the  town  nor  district  treasurer  can 
usually  be  garnished  for  a  teachers 
wages,  and  never  until  the  school 
conmiittee  have  given  an  order  in 


GARNISHMEN'T. 


531 


outside  the  military  lines  of  the  United  States,  the  price  of 
-fifty  thousand  dollars  being  paid  in  confederate  notes.    After- 


fuvor  of  the  teacher.  Spencer  v. 
School  Dist.  9  K.  I.  537.  And  in 
general  a  municipal  corporation  is 
not  suViject  to  the  process  of  gar- 
nishment, (Merwin  v.  Chicago,  45 
111.  134:;  Burnham  v.  Fond  du  Lac, 
15  Wis.  193;  McDougal  v.  Super- 
visors, 4  Minn.  134;  Mayors.  Hoot, 
8  Md.  102;  Chaisley  «.  Brewer,  7 
Mass.  260;  Bulkley  «.  Kkhart,  3 
Barr,  398  ;  jMayor  v.  Rowland,  2() 
Ala.  503:  Hawthorne  v.  St.  Louis, 
11  Mo.  59;  Mempliis  ».  Laski,  9 
Ileisk.  513:)  and  the  principle  is 
declared  to  he  of  universal  api)lica- 
ti'tn,  and  not  to  be  limited  to  cases 
where  garnisliment  would  interfere 
•W'th  corporate  duties,  (.Jenks  v. 
Osceola  Tp.  45  Iowa,  554;)  although 
it  is  held  that  the  exemption  may 
be  waived  by  appearance  and  sub- 
mission to  liability.  Drake  on  Att. 
f  516a;  Com'rs  v.  Bond,  3  Col.  412. 

4.  Private  corporation!^.  In  Wis- 
consin, by  statute,  the  cashier  or 
other  officer  of  a  private  corpora- 
tion, as  a  railroad  company,  is  sub- 
ject to  garnishment  for  the  debts  of 
the  company.  Everdell  v.  R.  H.  45 
Wis.  395.  But,  in  the  absence  of  a 
statute,  the  rule  is  doubtless  other- 
wise, because  funds  in  the  hands  of 
an  officer  are  to  be  regarded  as  in 
the  possession  of  the  corporation 
itself.     Wilder?).  Shea,  13  Bush,  137. 

As  to  an  outside  debt,  a  foreign 
corporation  doing  business  in  the 
state  may  be  garnished  in  the  same 
manner  as  a  domestic  corporation. 
Penn.,etc.,  R.  R.  Co.  «.  Peoples,  31 
Ohio  St.  537.  Wliere,  however,  in 
either  case  a  receiver  is  appointed, 
this  receiver  cannot  usually  be  gar- 
nished without  consent  of  the  court 
from  which  he  received  his  appoint- 
ment. Voorhees  v.  Sessions,  34 
Mich.   99 ;    Tremper  v.   Brooks,    31 


Ohio  St.  335  ;  Columbian  Book  Co. 
V.  De  Golyer,  115  Ma><s.  G7 ;  People 
ex  rel.  v.  Brooks,  40  Mich.  333.  The 
reason  is  that  property  held  l)y  a  re- 
ceiver is  regarded  as  in  the  custody 
of  the  court:  and  more  fully  does 
this  reason  prevail  where  money  is 
actually  paid  into  cour(  and  depos- 
ited in  a  bank  to  the  credit  of  the 
pending  cause.  Mattingly  fj.Grinies, 
48  Md.  105.  And  so,  where  inonev 
lias  been  deposited  by  a  i-eceiver  in 
the  hands  of  a  register  in  chancery, 
it  cannot  be  garnished,  even  if  the 
proceedings  under  which  the  de- 
posit was  made  have  been  deter- 
mined or  dismissed,  because  the 
money  would  still  be  in  the  custody 
of  the  court  and  subject  to  its  con- 
trol, and  the  register's  ])ossessi<)n 
would  still  be  as  an  officer  of  the 
court.  Voorhees  v.  Sessions,  ;!4 
Mich.  99. 

The  earnings  of  a  railway  niay  b(! 
reached  by  garnishment,  even  if 
tliese  are  covered  by  a  mortgage  not 
yet  due,  which  mortgage  provides 
that  until  defiudt  the  company  may 
use  the  road  and  receive  the  rents, 
profits,  and  increase  thereof.  R.  I{. 
V.  Plxpress  Co.  SI  111.  535. 

It  has  been  held  that  a  railroail 
corporation  cannot  bi-  garnished 
where  it  lias  issued  certificates  of 
indebtedness  to  its  employes,  and 
those  certificates  have  been  sold, 
even  if  such  certificates  are  not 
negotiable  in  law.  R.  W.  «.  Killcn- 
berg,  82  HI.  2r»5. 

A  corporation  may  be  garnished 
in  regard  to  shares  (if  stock,  held  liy 
a  debtor  therein,  unless  u  statute 
exempts  .such  shares.  R.  R.  «.  Paine, 
29  Gratt,  502;  Mciitidnnico  ♦>.  Page, 
10  IIei.sk.  443. 

5.  SnlnricH  nnd  wnrjes.  It  is  gen- 
erally prf)vided  that  the  sniaiies  of 


532 


GARNISHMENT. 


wards  lie  sold  her  to  a  packet  company  within  the  lines  of 
occupation  for  three  thousand  two  hundred  dollars,  United 


inunicipal  or  public  officers  cannot 
be  garnished,  and  sometimes  this  is 
extended  by  statute  to  the  wages  of 
empio3es  of  private  persons  or  pri- 
vate corporations.  Keyser  v.  Rice. 
47  Md.  2U3. 

The  general  rule  is  that  the  sal- 
aries of  officers  in  the  hands  of  dis- 
bursing officers  cannot  be  reached 
by  garnishment.  Pruitt  v.  Arm- 
strong, 56  Ala.  306. 

But  in  Kentucky,  while  the  sal- 
ary of  a  state  officer  cannot  be  gar- 
nished, the  salaries  of  municipal  offi- 
cers may  be,  because  a  municipality 
ma}'  be  sued,  Avhile  a  state  cannot 
without  special  consent.  Rodman 
V.  Musselman,  12  Bush.  3,U. 

A  debt  due  for  wages  is  usually 
subject  to  garnishment,  with  the 
exemptions,  however,  provided  by 
law.  McKelvay  v.  R.  R.  0  Rich. 
44(i. 

t).  Estates.  An  administrator  or 
executor  cannot  be  garnished,  usu- 
ally, for  a  debt  due  from  a  legatee 
or  distributee,  he  being  neither  "at- 
torney, agent,  factor,  trustee,  nor 
debtor,"  in  the  sense  of  a  garni.sh- 
raeut  statute.  Conway  v.  Arming- 
ton,  11  R.  I.  117. 

But  in  Maine  it  is  held  that  the 
words  "effects  and  credits,'  in  a 
statute, will  justify  the  garnishment 
of  a  legacy  in  the  hands  of  an  exec- 
utor or  administrator.  Cummings 
V.  Garvin,  65  Me.  301. 

In  Massachusetts,  it  seems,  a  leg- 
ac}'  may  be  garnished  in  the  hands 
of  an  administrator  or  executor, 
provided  the  legatee  is  not  in  debt 
to  the  estate,  in  which  case  the  debt 
thus  due  the  estate  has  the  preced- 
ence. Nickerson  v.  Chase,  122 
Mass.  296.  Rossibly  a  garnishment 
would  generally  lie,  where  there  is 
a  decree  of  distribution,  and  the 


funds  are  still  in  the  admin  istrators 
hands. 

In  Rhode  Island  the  creditor  of  a 
decedent  cannot  garnish  one  owing 
the  estate,  but  must  pursue  the 
course  marked  out  by  the  statute  for 
the  settlement  of  estates.  Bryant 
V.  Fussell,  11  R.  I.  286. 

7.  Promissory  notes,  etc.  In  Mas- 
sachusetts, where  a  certain  sum  was 
due  defendant  under  a  contract  pro- 
vidins:  that  payment  should  be  made 
to  him  by  the  other  party  to  the 
contract  in  negotiable  promissory 
notes,  of  which  the  dates  and 
amounts  were  fixed  by  the  contract, 
but  not  the  fimrs  of  payment :  and  the 
contract  further  provided  that  the 
interest  should  be  paid  on  each  note 
which  should  run  beyond  a  certain 
(lay  ;  and  at  the  service  of  the  writ 
the  time  when  the  last  note  should 
liear  date  had  expired.  Iiut  it  did 
not  appear  that  any  of  I  be  notes 
had  become  [)ayable,  or  tiiat  any 
debt  was  due  thereon  to  the  defend- 
ant.— it  was  held  that  a  garnishment 
would  not  lie  against  the  otiier 
party  to  the  contract.  Fuller  v. 
O-Brien,  121  Mass.  422. 

But  positive  promi^^sory  notes  are 
subject  to  garnishaient,  although 
not  .subject  to  attachment  in  the 
hands  of  the  holder.  Prout  r.  Grout, 
72  111.  456. 

A  bank  check,  given  in  ]jaympnt 
of  a  balance  on  accounting,  is  not 
suliject  to  garnishment  in  Massa- 
chusetts, the  writ  being  served  af- 
ter such  payment  l)y  check,  but 
before  presentation  at  the  bank. 
Getchell  v.  Chase,  124  Mass.  366. 

It  is  evident  that  a  scttlemeuf,  by 
which  the  prior  imhibtedness  is 
extinguished,  Avhether  by  actual 
payment  or  a  bank  check,  must  so 
discharge  a  liability  as  to  prevent 


GARNISHMENT. 


)6o 


States  currency.     After  the  war  the  former  company  owners 
attempted,  by  an  indirect  means  of  garnishment,  to  compel 


garnishment.     Huntington  v.    Kis- 
(ion,  43  la.  517. 

A  fialaiioe  duo  on  suhscriptiini  to 
the  stock  of  a  corporation  can  be 
^garnished.  Peterson  v.  Sinclair,  83 
Fa.  St.  250.  And  a  creditor  of  the 
■corporation  may  join  two  or  more 
stocliliolders  in  the  same  writ,  for 
unpaid  subscriptions.  Curry  v. 
Woodward,  83  Pa.  St.  371. 

8.  Mortgages.  A  s?cond  nun-lga-gee 
cannot  garnisli  the  first  mortgag'^e 
iis  tlie  debtor  of  the  mortgagor,  for  a 
surplus  of  rents  and  profits  remain- 
ning  in  liis  hands  after  the  satisfac- 
tion of  his  debt.  Toomer  v.  llau- 
■dolph,  GO  Ala.  350.  And  so,  where 
<\  mortgagee  of  chattels  takes  pos- 
session of  the  properly,  he  cannot 
Ije  held  for  an}'  e.xce.ss  in  value  over 
the  amount  of  his  claim.  Dieter  v. 
Smith,  70  III.  16s. 

Where  a  savings  bank  held  a  note, 
secured  by  mortgage,  and  released 
u  portion  of  the  lands  in  consider- 
^•ition  of  a  certain  amount  of  mone\' 
by  the  mortgagor,  it  was  held  the 
hank  was  not  chargeable  as  trustee 
for  the  money  .so  received.  Flagg 
V.  Bates,  65  Me.  364. 

9.  Judgment  debts.  A  judgment 
debt  is  held  sul)ject  to  garnishment, 
at  least  on  a  writ  issued  from  the 
same  court  which  rendered  the 
judgment.  Calhoun  v.  Whittle,  56 
Ala.  138.  But  where  judgment  in 
JioUdo  is  entered  against  joint  de- 
fendants, one  of  them  cannot  be  re- 
garded as  a  third  person,  so  as  to  be 
subject  to  garnishment  in  the  mat- 
ter, as  to  his  co-debtors  in  the  judg- 
ment. Bailey  v.  Lacey,  27  La.  An. 
30;  Uichardson  v.  Lacey,  Id.  62. 

In  Georgia  a  count  for  mesne 
profits,  in  an  action  of  ejectment, 
may  be  garnished,  under  a  statute 
subjecting  "suits  pending"  to  gar- 


nishment process.     Walkcs  r.  Zorii, 
56  Ga.  35. 

10.  Future  liabilities;  and  ront  n- 
gcnt.  It  is  held  to  be  a  rule  that  in 
a  garnishment  suit  the  garnishee 
stands  in  as  favorable  a  situation  as 
if  he  were  sued  by  his  own  creditor; 
unless,  indeed,  there  is  a  provision 
by  statute  that  claims  not  yet  due 
may  be  subject  to  garnishment. 
Where  something  remains  to  be 
done  in  order  to  fi.\  an  indebted- 
ness, a  writ  of  g;u'nishment  will  not 
lie.  Curtis  v.  Alvord,45  Conn.  56ii. 
See,  also,  87  111.  107.  The  validity 
of  a  writ  must  be  settled  by  the  state 
of  facts  existing  at  the  time  of  serv- 
ice. O'Brien  v.  Collins,  124  Mass. 
98;  Hancock  v.  Colyer  99  Mass.  Is7. 
And  so,  if  there  is  a  sum  due  to  ilic 
principal  defendant,  yet  if  b}'  a  prior 
agreement  it  is  to  be  appropriated  to 
the  payment  of  a  specific  debt,  a 
garnishment  writ  nuisi  be  ineffect- 
ual; nor  does  it  matter  if,  after  tlu^ 
service  of  the  writ,  the  specific  debt 
is  paid  in  another  manner  than  tlu; 
manner  cont(!mp!ated  and  agried 
ii|)(>n  at  llie  lime  of  the  sciAirc. 
O'lirien  v.  Collins,  .v//y;;'((.  It  is  not 
always  necessar\',  liowever,  that 
there  should  be  a  specific  agreement 
to  pay  money,  if  a  legal  obligation 
exists.  .V  singular  case  arose;  in 
Missouri,  thus:  The  lands  ofa  delit- 
(;r  were  sold  successively  by  two  of 
his  creditors — by  one  under  an  exe- 
cution; l)y  the  other  under  a  deed  oT 
trust  afterwards.  The  judgment 
creditor  .sold  for  less  than  iiis  claim; 
the  other  for  more;  than  his  claim. 
Hdd,  that  the  surplus  in  tiir  hands 
of  the  trust  creditor  (;ould  be  gar- 
nished in  favor  of  the  judirment 
creditor  for  the  balance  due  him. 
Casebott  «.  Donaldson,  67  Mo.  .309. 
But  there  must  be  an  actually  exist- 


584 


GARNISHMENT. 


A.  to  pa}'  them  the  monej^  he  had  received  for  the  boat,  under 
the  plea  that  as  the  hrst  sale — the  sale  to  him — was  in  contra- 


ing-  debt.  Osborne  v.  ^^cliult,  IJ7 
JVIo.  Tl'J. 

As  1()  cuntiugcnt  cliiims,  tliry  are 
Tiot  subject  to  garnisliment.  But 
the  question  may  arise  whether  a 
])articular  cl;iim  is  contingent  or 
otherwise.  Thus,  earnings  actu- 
ally made  are  not  contingent 
merel}-  because  they  are  to  be  paid 
in  the  future,  on  the  estimate  and 
certificate  of  a  third  person.  Ware 
V.  Gowen,  6.')  Me.  534.  The  debt 
must  beabsoliitely  due,  but  this  may 
be  so  although  the  OHcerlic/iiii/eiif  of 
the  amount  may  be  future.  Maduel 
V.  Mousseau.x,  29  La.  An.  2-2s.  But, 
where  conditions  are  to  be  performed 
by  a  third  person,  the  conditions 
mu-;t  l)e  fulMlled  Iteforc  the  writ 
will  lie.  Williams  V'.  Young,  4(J  la. 
14(1. 

Wlun'e  one  makes  a  contract  to 
build  a  house,  and  on  its  completion 
a  definite  sum  will  be  owing,  less 
any  damages  the  own(!r  ma_v  be  en- 
titled to,  a  plaintiff  may,  as  the  as- 
signee of  the  contractor,  complete 
the  building,  and  garnish  tlie  owner 
for  the  just  amount.  Zimuicr  v. 
Davis,  35  Mich.  40. 

11.  Partncrsliips,  etc.  It  is  settled 
that  an  indebtedness  due  to  a  linn 
cannot  be  garnished  in  the  hands  of 
the  debtor  to  pay  the  separate  debt  of 
one  of  the  partners,  (Myers  r.  Smith, 
29  Ohio  St.  120.)  notwithstanding 
the  tangible  effects  of  a  partnership 
may  be  attacJud  for  the  debt  of  a 
partner.  In  such  case  the  attaching 
creditor  or  other  vendee  only  takes 
the  place  of  the  debtor  in  the  eli'ects 
of  the  tirm,  to  be  determined  by 
a  proper  subsequent  adjustment. 
People's  Bank  v.  iShryock,  48  Md. 
433;  Winston?).  Ewing,  1  Ala.  129  ; 
8heedy  «.  Bank,  62  Mo.  18.  This 
is  the  almost  universal  rule.    See, 


also,  to  the  same  effect,  Sweet  v. 
Bead,  12  B.  I.  121.  And  the  rule 
applies  to  unsettled  partnership  ac- 
counts between  the  partners  them- 
selves. Ives  «.  Vanscoj'^oe,  81  111. 
120.  But  in  Louisiana,  while  it  is 
acknowledged  to  be  the  general  rule 
that  the  property  of  wnc_/i;v/(  cannot 
be  made  to  an.swer  to  the  del)t  of 
another  firm,  yet  it  is  held  that  the 
attachment  of  the  interest  of  a  non- 
resident in  the  property  of  a  foreign 
commercial  firm  is  allowable,  as  a 
matter  of  remedial  justice,  in  favor 
of  a  citizen  creditor.  Tajior  v. 
Kehler,  28  La.  An.  530.  But  the 
interest  itself  must  be  within  the 
jurisdiction,  and  especially  lands  in 
another  state  are  not  subject  to  gar- 
ni--hment  in  such  manner.  Bancker 
V.  Harrington,  .30  La.  An.  136.  But 
a  garnishee  ma}'  be  a  non-resident^ 
and  be  proceeded  against  by  attach- 
ment as  such.  Squair  v.  Shea,  26 
Ohio  St.  649.  And  where  a  statute 
allows  a  summons  to  be  sent  into 
another  count)/,  and  there  served  on 
(me  of  two  or  more  joi7it  defendants, 
a  garnishee  maj'  likewise  be  reached 
in  another  count}'.  R.  R.  v.  Rey- 
nolds, 72  111.  487. 

J 2.  lluiihund  and  irife.  Where  a 
husljaud  becomes  his  wife's  debtor 
he  may  be  garnished  by  her  cred- 
itor. Odend'IIal  »!.  Devlin,  48  Md. 
440.  AVliere  property  passes  to  the 
Avife  liyijift,  of  course  neither  .she 
niu'  her  vendee  can  be  held  as  gar- 
nishee therefor  l)y  the  husband's 
creditor.  Hayward  e.  Clark,  50 
Vt.  612. 

13.  Ats/gumcnts.  An  important 
question  sometimes  arises  as  to  the 
rights  of  a  creditor  where  an  assign- 
ment has  been  made  of  property  or 
claims  conceining  Avhich  a  gar- 
nishment    is    attempted.      Where 


aARNISHMENT. 


535 


vention  of  the  United  States  laws  it  was  void,  and  therefore 
the  money  he  held  was  theirs,  the  steam-boat   being  still 


propertj'^  is  held  by  a  valid  assign- 
ment for  the  benetit.of  creditors,  it 
cannot  be  reached  by  garnishment 
for  the  debts  of  the  assignor. 
Schlueter  v.  Raymond,  7  Neb.  281. 
Bui  the  utmost  good  faith  must  be 
observed  in  all  assignments  or 
transfers  by  one  indebted.  Fcarey 
V.  Cummings,  41  Mich.  376.  And 
this  is  held  to  apply  even  to  the  as- 
signment of  a  promissory  note  be- 
fore maturity.  Clough  v.  Buck,  6 
Neb.  343.  And,  especialh^  after 
service  of  the  writ,  a  garnisliee 
parts  with  a  promissory  note  at  his 
peril,  unless  he  is  prepared  to  show 
that  the  note  was  not  subject  to  the 
payment  of  the  debt  by  reason  of 
some  pre-existing  circumstance. 
Stevens  v.  Dillman,  86  111.  233. 
Where  the  facts  of  a  transfer  of  a 
promissorj''  note  are  to  be  investi- 
gated in  a  garnishee  process,  the 
assignee  is  a  necessary  partJ^  Sim- 
mons V.  Guyon,  57  Ala.  11.  The 
fact  that  a  note  assigned  to  a  cred- 
itor in  pa3"ment  of  a  debt  is  of  great- 
er value  than  the  debt,  does  not  of 
itself  make  a  case  of  bad  faith  as  to 
other  creditors.  Nathan  v.  King, 
51  Cal.  521.  Where  an  assignment 
has  been  made  so  that  there  is  a 
surplus  so  resulting  to  the  assignor 
as  that  he  could  maintain  an  action 
for  it,  this  may  be  subjected  to 
garnishment,  but  not  otherwise. 
Smith  «.  Millett,  11  K.  1.  535. 

If  property  in  the  hands  of  a 
trustee,  or  a  debt  owing  l)y  him, 
has  been  assigned,  and  he  has  notice 
of  it  before  the  service  of  the  writ, 
he  must  disclose  it,  or  he  will  be 
still  lial)]e  to  the  assignee,  notwith- 
standing he  is  charged  in  the  gar- 
nishee process.  Larrabce  v. 
Knight,  69  Me.  320. 

An  assignment  of  a  partnership 


for  the  benefit  of  its  creditors  will 
be  protected  from  garnishment,  if 
made  in  good  faith.  Bancker  «. 
Harrington,  30  La.  An.  136. 

in  New  Hampshire  the  assif/n- 
ment  of  wages,  to  be  earned  in  the 
future,  will  be  protected  if  in  writ- 
ing. Thompson  v.  Smith,  57  N. 
H.  306.  But  whether  the  right  can 
be  protected  further  than  the  wages 
are  actually  earned  at  the  time  of 
the  service  of  the  writ  seems  to  be 
uncertain.  See  Kane  v.  Clough,  36 
Mich.  436.  And,  where  wages  are 
assigned  as  security  for  goods  fur- 
"nished,  it  is  held  that  if  the  as- 
signee, at  the  time  a  writ  is  served, 
is  fully  paid  for  the  goods  deliv- 
ered, and  there  is  no  particular 
time  during  which  the  arrange- 
ment is  continued,  any  surplus  of 
wages  earned  may  be  reached  in 
the  hands  of  the  assignee  by  gar- 
nishment. Warren  f!.  Sullivan,  123 
Mass.  285  ;  see,  also,  Giles  v.  Ash,  123 
3Iass.  353. 

Where  one  Avas  employed  by  a 
firm  on  wages,  and  was  to  purchase 
of  one  of  the  partners  a  lot  of 
ground,  and  did  so,  to  be  paid  for  by 
instalments  of  the  wages  due  from 
the  firm,  it  was  held,  the  wages 
could  not  be  reached  by  garnish- 
ment until  after  the  lot  should  be 
paid  for  in  the  manner  stipulated, 
or  otherwise.  Wait  «.  .Mann,  124 
Ma.ss.  586. 

In  Massachusetts  an  assigiunciit 
of  wages  is  required  to  be  in  writ- 
ing. Onimet  v.  Sirois,  124  Mas.s. 
162.    ■ 

And  a  mere  ctiiiitahle  right  in  re- 
gard to  assignments  cannot,  on  the 
ordinary  principle,  be  subjected  to 
garnishnujiit.  Bank«.  IJiillock,  12l> 
iMass.  86. 

14.  Plfiintijf'aagdriiinhre.   A  plain- 


536 


GARNISHMENT. 


theirs,  as  the  title  could  not  pass  by  a  void  sale.     But  their 
plausible  pretexts  failed  to  reach  the  money.  (6) 

§  551.  If  a  party  bona  fide  purchases  goods  from  one  sell- 
ing goods  to  defraud  his  creditors,  but  without  any  knowledge 
of  the  fraudulent  intent,  and  pays  for  the  goods  by  giving  his 


tiff  ciinnot  properly  make  himself  a 
garnishee,  because  a  plaintiff  and 
garnishee  "are  not  only  coiAem- 
plated  as  occupying  adverse  rela- 
tions, but  the  garnishee  is  regarded 
as  representing  the  defendant,  and 
is  allowed  to  act  for  him,  which 
would  be  repugnant  to  the  first 
principles  of  jurisprudence,  if  he 
might  himself  be  the  plaintilf." 
Knight  V.  Clyde,  12  K.  1.  120. 

15.  Exemptions.  The  matter  of 
exemptions  may  be  regarded  as 
partly  juri.sdictional,  at  least,  as  well 
as  a  matter  of  pleading  or  practice. 
There  may  be  a  statutory  exemption 
in  favor  of  the  garnishee  himself; 
but  it  is  held  that  a  garnishee  nuist 
likewise  claim  the  benefit  of  exemp- 
tion laws  for  the  principal  debtor, 
and  especiall}^  so  in  the  case  of  a 
railroad  corporation  and  an  em- 
ploye. R.  R.  ».  Ragland,  84  111. 
;J75.  It  is  held  otherwise,  however, 
in  Missouri,  on  the  ground  that  an 
exemption  is  merely  a  debtor's  per- 
sonal privilege,  which  he  can  only 
exercise  for  himself.  Osborne  v. 
iSchutt,  07  Mo  712.  In  Maine  it  is 
iield  that  under  a  statute  exempt- 
ing one  month's  labor  a  trustee  must 
disclose  the  fact  that  the  debt  is  for 
labor,  or  otherwise  he  will  be  liable 
to  tbe  principal  debtor  for  that 
amount.  Lock  v.  Johnson,  36  Me. 
4G4.  In  Wisconsin  the  exemption 
of  the  debtor  should  be  set  up  by 
the  garnishee,  (Winterfield  v.  R. 
R.  2!)  Wis.  589  ;)  as,  for  instance, 
money  due  a  judgment  debtor  from 
a  pnrcbaserof  his  homestead,  which 
money  tlie  debtor  intends  to  apply 
to  the  purchase  of  another  home- 


stead, (Watkins  c.  Blatschinski,  40 
Wis.  347 ;)  or  cases  inaction  exempt 
by  statute.  Probst  v.  Scott,  31  Ark. 
652. 

16.  Resadjudicata.  The  ordinary 
rules  of  res  ndjudicata  apply  to  a 
garnishment  proceeding,  (Wilson 
V.  Burney,  S  Xeb.  39  ;)  and  especially 
so,  as  it  Avould  be  manifestly  im- 
proper to  subject  a  garnishee  to  a 
double  liability,  (Gas-light  Co.  v. 
Merrick,  01  Ala.  534,)  on  the  proper 
disclosures  being  made  and  contest- 
ed on  a  full  and  fair  trial  of  the  is- 
sues, (Fearney  «.  Cummings,  41 
Mich.  376.)  and  due  payment  made, 
(Dane  v.  Holmes,  41  Mich.  061 ;)  un- 
less, indeed,  the  original  attachment 
was  void,  (Greene  «.  Tripp,  11  R. 
I.  425,)  or  there  was  a  fatal  defect 
in  the  notice  to  the  garnishee,  as  to 
w^ho  was  the  original  defendant,  so 
that  after  service  funds  were  paid 
to  the  original  debtor  by  the  gar- 
nishee under  mistake  of  the  fact. 
Terry  f.  Sisson,  125  Mass.  560. 

Garnishment  in  aid  of  an  execu- 
tion can  only  be  maintained  when 
the  execution  is  valid.  Keutzler  «. 
R.  R.  47  Wis.  641. 

17.  Venue.  A  debtor  cannot  be 
required,  as  garnishee,  to  pay  his 
debt  to  his  creditor's  creditor  at  a 
different  time  and  place  at  whicli 
it  could  be  recovered  from  him 
by  his  own  creditor.  Bank  v.  R.  R. 
45  Wis.  173.  And  a  demand  must 
be  shown  if  the  debt  is  payable  on 
demand,  and  at  the  place  designated. 
Ibid. 

(6)Tliompson  <!.Trans.  Co.  (Brown, 
garnishee,)  24  La.  An.  384. 


GAENISHMENT.  537 

notes  to  a  third  person,  it  is  held  that  he  is  thereafter  not 
indebted  to  the  vendor,  whose  creditors,  therefore,  cannot  gar- 
nish him,  even  though  the  notes  are  unpaid,  and  in  the  hands 
of  one  who  took  them  with  notice  of  the  fraudulent  intent  of 
the  vendor,  (c.) 

§  552.  And  on  the  other  hand  a  Jiona  fide  purchaser,  for 
value,  of  a  promissory  note  before  it  is  due  has  a  right  to  col- 
lect it,  even  where  the  maker  has  been  served  with  a  garnish- 
ment summons  requiring  him  to  answer  what  he  was  indebted 
to  the  payee,  who  was  the  owner  of  it  at  the  time  of  the  sum- 
mons: the  right  of  the  purchaser  in  such  a  case  being  regarded 
<is  superior  to  that  of  the  garnishing  creditor.(rf)  And  a 
party  on  a  negotiable  promissory  note,  originally  given  to  the 
■defendant,  cannot  be  held  liable  unless  it  is  shown  that  the 
note  remains  in  the  defendant's  hands,  since  a  payme)it  of 
the  judgment  in  garnishment  would  not  protect  him  from  lia- 
bility to  pay  the  note  to  the  holder  afterwards. (e) 

§  553.  In  a  trustee  process  a  joint  debt  cannot  be  subject 
in  a  suit  against  one  of  the  parties  alone  to  whom  the  debt  is 
-due,  and  a  claimant  whose  claim  is  not  valid  may  be  allowed 
to  raise  the  objection  against  the  trustees  being  held  liable. (/) 
But  where  two  or  more  are  summoned  as  trustees,  with  noth- 
ing in  the  writ  to  indicate  in  which  capacity  they  are  to 
answer,  whether  as  to  their  joint  or  several  liability,  it  is  held 
they  are  before  the  court  generally  in  their  joint  and  several 
character,  and  are  therefore  chargeable  for  all  their  indebt- 
edness to  the  principal  del)t()r.  joint  as  well  as  several,  pro- 
vided all  the  joint  debtors  are  before  the  court. (7) 

§  554.  In  Iowa  money  in  the  hands  of  a  court  or  oflicer 
may  be  reached  and  made  to  answer  in  the  snit.(//)  And  in 
Georgia,  as  money  collected  by  a  sheriff  on  execution. (/) 
And  in  Illinois,  as  money  in  the  hands  of  a  special  master 
in  chancery, (J)  but  not  money  collected  by  a  regular  sheriff 
on  execution  sale;  it  being  held  that  public  policy  requires 

(c)I)iffcii(l()if  «.   Oliver,    S    K;ni.  (/jFainhiM  »)     Liiinps"",  .'iT   Vl. 

SGf).  I'i-"'- 

(d)Mims«.  West,  38  Ga.  20.  (r/)Liinisnii  v.  \Wm\W\  ,  \1  Vl.  ICC. 

(f^)Denliain  v.  Po<;iie,  2(i   I..1.  An.  (AjFalU-rson  n.  rralt,  ID  la.  .'JoH. 

295_  (,){U".\y  «.  Maxwell,  -tO  Ga.  108. 

(yjWcavur  v.  Davis,  47  111.  ii.'jr). 


538  GARNISHMENT. 

that  a  sheriff  shoukl  not  be  charged  on  garnishment  process, 
in  respect  of  any  money  held  by  him  in  virtue  of  that  author- 
ity, because  it  is  in  the  custody  of  the  law.  But  a  surplus 
remaining  in  the  hands  of  the  sheriff,  after  satisfying  the 
plaintiff's  execution,  may  be  subjected  to  garnishment;  be- 
cause, when  the  amount  due  on  the  judgment  is  paid  into 
court,  or  paid  over  to  the  plaintiff,  the  execution  has  accom- 
plished its  purpose,  and  the  duty  of  the  officer  is  to  pay  the 
surplus  over  to  the  defendant.  It  is  not  strictly  in  the  cus- 
tody of  the  law,  but  the  officer  holds  it  as  so  much  money 
had  and  received  for  the  use  of  the  defendant.  And  this  is 
the  general  rule.(/t) 

Money  in  the  hands  of  an  attorney,  not  as  fees,  for  services 
in  a  case  wherein  he  is  actually  retained,  but  nominally  for 
fees  which  he  might  earn  in  any  future  litigation  in  which 
the  client  may  be  engaged,  can  be  taken  in  garnishment. (/) 
And  it  has  been  held  no  violation  of  professional  privilege  to 
compel  an  attorney  to  answer  as  to  the  situation  of  affairs 
between  him  and  his  client  as  to  any  of  the  client's  property 
in  his  hands.  (»i) 

Under  the  general  rule,  that  money  or  property  in  the  cus- 
tody of  the  law  cannot  be  garnished,  it  has  been  held  that 
money  in  the  hands  of  a  school  treasurer,  to  be  paid  a  teacher 
whose  wages  are  due,  cannot  be  reached  in  this  way,(w)  nor 
in  the  hands  of  school  directors. (o) 

In  Maryland  it  is  held,  where  a  trustee  is  appointed  by  a 
court  of  chancery,  and  holds  money  belonging  to  a  non-resi- 
dent, the  money  may  be  attached  by  creditors  if  the  final 
audit  has  been  ratified  by  the  court,  the  amount  due  the 
debtor  ascertained,  and  an  order  passed  to  direct  the  trustee 
to  pay  it  over.(_p) 

A  judgment  debtor  may  be  held  as  garnishee  of  the  judg- 
ment creditor,  in  favor  of  a  creditor  of  the  judgment  creditor, 
provided  the  two  actions  are  in  the  same  court;  and  in  such 
a  case  an  injunction  will  lie  in  favor  of  the  judgment  debtor, 

(A;)Li!>-litDer  v.   Steinagel,  33  111.  (/i)MillisoQ  «.  Fisk,  43  111.  113. 

.')H!,  and  cases  cited.  (^y)Bivens  v.  Harper,  59  111.  21. 

(OCiain  ?).  Gould,  46  111.  2!).").  (/>)  Williams     v.    Jones,    38    Md. 

(iH)Wlute    V.    Bird,   20  La.    An.  r,-)o. 
188. 


GAENISHMENT.  539 

to  restrain  the  collection  of  the  judgment,  pending  the  gar- 
nishment proceedings,  (g) 

But  in  Massachusetts  it  is  held  that  fees  due  a  juror,  and 
ordered  to  be  paid  to  him  out  of  the  county  treasury,  cannot 
be  intercepted,  thus  agreeing  with  the  decisions  in  Illinois, 
but  on  a  different  ground,  namely:  that  there  is  no  privity 
of  contract,  express  or  implied,  (r) 

§  555.  In  Massachusetts  an  agent  is  held  not  chargeable  as 
trustee  in  a  foreign  attachment  for  wages  due  from  his  prin- 
cipal to  the  defendant;  and,  moreover,  if  he  is  erroneously 
charged,  and  pays  the  amount  to  the  officer  on  execution, 
neither  the  payment,  nor  the  ratification  by  the  principal  in 
allowing  it  to  him  on  settlement,  nor  the  fact  that  when  the 
execution  was  levied  the  defendant  himself  told  the  officer 
that  he  might  apply  those  wages  towards  satisfying  the  execu- 
tion, is  a  defence  to  an  action  brought  in  the  defendant's 
name  against  the  principal  by  an  assignee  whose  transfer 
occurred  before  the  agent  paid  the  officer,  of  which  transfer 
the  agent  had  notice  before  paying,  (s) 

And  where  one,  as  agent,  collected  rents  for  the  trustee  of 
another,  and  was  thereon  garnished  as  the  debtor  of  the 
beneficiary,  it  was  held  that  the  rents  were  a  trust  fund  in 
the  hands  of  the  trustee  until  paid  over  to  the  beneficiary, 
and  the  agent  could  not  be  held  as  the  debtor  of  the  bene- 
ficiary for  rents  thus  received  as  the  agent  of  the  trustee. (^ 

One  cannot,  in  Vermont,  be  charged  as  trustee,  under  the 
statute,  as  to  trustee  process  on  account  of  rhoscx  in  artion 
which  he  holds  for,  or  in  the  right  of,  the  principal  debtor, 
even  if  he  holds  tbem  in  his  own  name,((()  as  this  does  not 
constitute  him  a  debtor  in  the  meaning  of  the  statute. 

§  556.  As  to  executors  and  administrators,  the  rule  in  New 
Hampshire  is  that  "under  the  provisions  of  our  statute,  re- 
lating to  the  process  of  foreign  attachment,  an  executor  or 
administrator  may  l)e  charged  as  the  trustee  of  an  heir  or 
legatee  for  any  sum  of  money  fou).d  to  be  in  liis  hands  upon 

(r/)Keith  «.  Harris,  9  Kan.  38s.  (.sjCascy  v.  Davis,  lUU  >I';^-;-  '-^; 

(,)WUliams  V.  Boardman,  9  Gray,  (OMclivain.-^.LancasU.,- 4.iMu..)0. 
...„  '  (,/)Fulier  V.  .Icwc-M,  .57  Vt.  474. 


540  GARNISHMENT. 

the  settlement  of  the  estate  belonging  to  such  heir  or  legatee. 
And  where  process  is  served  upon  the  executor  as  trustee, 
before  the  settlement  of  the  estate,  or  before  it  is  rendered 
certain  that  there  will  be  anything  in  the  hands  of  the  trustee 
belonging  to  the  principal  defendant,  the  action  will  ordina- 
rily be  continued  until  the  settlement  of  the  estate,  or  until 
the  liability  of  the  trustee  can  be  definitely  settled  and  deter- 
mined, when  he  will  disclose,  and  be  charged  or  discharged 
according  to  the  facts  as  they  exist  at  the  time  of  the  judg- 
ment."(r)  In  California  it  is  held  that  after  the  decree  of 
distribution  money  in  the  hands  of  an  administrator  to  be  dis- 
tributed to  an  heir  or  devisee  may  be  garnished. («•)  In  Mis- 
sissippi it  is  held  not  only  that  executors  and  administrators 
may  be  garnished  for  a  del)t  due  their  intestate  or  testator, 
but  also  that  assets  in  the  hands  of  others,  which  they  are 
bound  to  pay  over  to  the  executor  or  administrator,  may  be 
reached  by  process  of  garnishment  against  the  debtors  of  the 
testator  or  intestate. (a;)  In  Georgia  the  effects  of  an  estate 
may  be  tied  up  by  an  advance  garnishment  process  until  it 
can  be  ascertained  how  affairs  stand  with  regard  to  them.(?/) 
In  North  Carolina  it  has  been  held  that  the  administrator  of 
one  summoned  as  garnishee,  but  dying  before  the  return  day, 
cannot  be  compelled  to  answer  instead  of  the  intestate. (^) 

§  557.  As  to  partnerships,  it  is  the  general  rule  (with 
Pennsylvania,  Maryland,  and  South  Carolina  dissenting) 
that  partnership  credits  can  in  no  case  be  garnished  to  pay 
the  individual  debt  of  one  of  the  partners; (a)  and  not  even 
after  dissolution;  and  the  reason  given  for  it  in  Georgia  is 
that  "the  copartnership  property,  after  the  dissolution  of  the 
partnership,  is  first  liable  to  pay  the  partnership  debts  before 
it  can  be  made  liable  for  the  debts  of  one  of  the  individual 
partners.  The  copartnership  propert}-  is  assets  for  the  pay- 
ment of  the  copartnership  debts  as  well  after  the  dissolution 
as  before.  "(5) 

(r)Pa]mer  v.  Noyes,  45  N.  H.  174.  (2)State  v.  Morehead,  65  N.  C.  683. 

.  ((c)Xerac's  Estate,  35  Ca!.  392.  (rt)Drake  on  Att.  U  569,  570,  and 

(>)TIiraslier  v.    Buckingham,   40  cases  cited. 

Miss.  67.  (6)x\nderson  v.  Chenne}',  51   Ga. 

(2/)Sapp  p.  Adm'r,  41  Ga.  628.  373. 


GARNISHMENT.  541 

§  558.  In  some  states,  as  Massachusetts (c)  and  Vermont,(d:) 
a  municipal  corporation  can  be  garnished;  in  others,  as 
Illinois, (c)  it  cannot;  in  others  still  an  exemption  may  be 
waived, (/)but  it  cannot  properly  be  waived  if  the  reasoning  of 
the  court  in  Illinois  is  to  be  taken  as  conclusive:  "It  must 
be  decided  as  a  question  of  pubUc  policy.  These  municipal 
corporations  are  in  the  exercise  of  governmental  powers  to  a 
very  lar^e  extent.  They  controlpecuniary  interests  of  great 
magnitude,  and  vast  numbers  of  human  beings  who  are  more 
dependent  for  the  security  of  life  and  property  on  the  munic- 
ipal than  on  either  the  state  or  federal  government.  To 
permit  the  great  public  duties  of  such  corporation  to  be 
imperfectly  performed,  in  order  that  individuals  may  the 
better  collect  their  private  debts,  would  be  to  pervert  the 
great  objects  of  its  creation."  The  general  rule,  undoubtedly, 
is  that  municipal  corporations  are  not  subject  to  garnishment 
in  regard  to  any  kind  of  indebtedness. 

§  559.  But  of  course  the  matter  is  entirely  different  as  to 
private  corporations,  which  may,  doubtless,  be  held  as  in- 
dividuals are  in  similar  circumstances.  However,  a  railroad 
corporation,  having  an  agreement  with  connecting  lines,  and 
in  a  monthly  settlement  paying  accounts  to  the  road  immedi- 
ately adjoining,  but  including  in  the  settlement  tlie  amount 
due  the  companies  whose  roads  lie  beyond,  is  held  not  liable 
as  trustee  in  foreign  attachment  of  that  corporation  for  a 
sum  so  found  due  to  it,  and  for  which  it  is  in  turn  liable,  un- 
der the  agreement,  to  the  other  companies. ((/)  And,  again, 
a  railroad  company  cannot  be  garnished  when,  at  the  time  of 
issuing  and  serving  the  writ,  the  property  of  which  the  cred- 
itor is  in  (piest  has  left  for  its  destination  and  is  en  route  con- 
signed to  the  debtor. (/i)  And  this  is  placed  upon  this  ground 
in  the  cage  where  the  decision  was  made:  "Any  other  rule 
would  make  railway  companies  collecting  agents  of  creditors, 
and  that,  too,  at  the  risk  of  the  (•onii)anics.     They  are  com- 

(<)Williiiins  V.  Kenncy,  9S  Mass.  (^)Mcr\vin  «.  (;hiriii,'o,  45  111.  i:{4. 

J43  "  (/){;iapp  «.  Walker,  25  la.  J15. 

(d)John8on  v.  Howard,  41  Vt.  122.  (r/)C'liapin  v.  U.  li.  16  Gray,  69. 

(/t)R.  K.  1).  (.'obi),  4H  111.  403. 


542  GAKNISHMENT. 

moil  carriers  of  all  kinds  of  manufactured  and  agricultural 
products,  having  a  lien  upon  the  articles  delivered  for  their 
freightage.  They  are  obliged,  under  ordinary  circumstances, 
to  carry  all  that  shall  be  delivered  to  them,  and  they  dis- 
charge their  duty  by  carrying  and  delivering  according  to  the 
contract.  It  is  not  their  business,  nor  is  it  their  interest,  to 
know  to  whom  the  various  articles  belong,  nor  should  it  be 
required  of  them  that  conflicting  claims  to  the  property  en- 
trusted to  them  should  be  adjusted  througli  controversies,  the 
burden,  annoyance,  and  expense  of  which  they  must  bear. 
When  the  property  has  left  the  county,  and  is  in  transit  to  a 
■distant  j)oint,  though  on  the  same  line  of  railway,  it  would  be 
unreasonable  to  subject  the  company  to  the  costs,  vexation, 
and  trouble  of  such  a  process  merely  because  it  had  received 
to  be  carried  that  which  the  law  compelled  it  to  receive  and 
carry." 

Foreign  corporations  may  be  held  liable  to  garnishment  in 
a  state  where  they  own  property',  or  where  the  cause  of  action 
as  to  them  arose. (i) 

§  .560.  Money  in  the  hands  of  a  station  agent  of  a  railroad 
company,  received  from  the  sale  of  tickets  and  payment  of 
freights,  cannot  be  garnished  in  a  suit  against  the  com- 
pany. (,/)  The  grounds  of  this  are  (1)  that  whatever  can  be  at- 
tached by  the  ordinaiy  process  is  not  subject  to  garnish- 
ment; (2,)  that  garnishment  usually  lies  only  where  the  holder 
of  property  is  personally  liable,  so  as  to  be  a  debtor  to  the 
defendant ;  and  (3)  that  in  the  contemplation  of  law  money  in 
the  hands  of  an  agent  of  a  corporation  is  in  the  hands  of  the 
company  itself,  and  the  process  is  intended  for  cases  where 
the  goods  are  out  of  the  personal  possession  of  the  defendant. 
And  the  New  Hampshire  court  say:  "The  corporation,  as 
such,  has  no  personalit}'- except  in  the  persons  of  its  agents. 
It  can  only  act  by  agents.  B^^  them  alone  can  it  possess  its 
property,  and  exercise  its  corporate  functions.  In  doing 
this  their  acts  and  possession  are  its  own — not  constructively, 
as  in   the  case  of  agents  of  persons,  but  actually.     In  this 

(*)Brauser   v.    Ins.    Co.    21    Wis.  ( /)Pettingill    v.    11.    U.    :>!    Y.v. 

512;  K.  11.  »).  Tyson,  48  Ga.  351.  371. 


GAKNISHMENT.  54:3 

respect  corporations  differ  from  persons.  In  one,  the  act  or 
possession  of  the  agent  is  const ructlvelij  that  of  his  principal; 
in  the  other,  it  is  actually  so.  There  may  be  a  limit  to  the 
application  of  this  princijjle.  A  corporation  may  employ  an 
agent  who  is  not  invested  with  its  personality.  A  railroad 
company  does  employ  a  large  number  of  such  agents  in  car- 
rying on  its  business.  Such  agents,  having  the  property  of  tho 
corporation  in  their  possession,  may  be  held  as  its  trustees. 
But  some  of  the  agents  of  a  corporation  must,  in  this  respect, 
be  considered  as  the  corporation,  and  they  cannot  be  charged 
-as  trustees  for  the  reason  that,  quoad  hoc,  they  are  the  same. 
It  may  not  be  easy  to  draw  the  line  between  these  two 
classes  of  agents.  But  we  cannot  doubt  that  those  who  are 
appointed  to  exercise  the  corporate  functions  as  its  regular 
■agents,  in  doing  business  for  which  the  corporation  was  organ- 
ized, must  be  considered  as  identical  with  the  corporation  in 
such  business.  A  railroad  corporation  sells  passage  tickets, 
and  receives  and  delivers  freight,  by  station  agents  ap^jointed 
for  that  purpose.  It  can  do  it  in  no  other  way.  This  is  the 
very  business  for  which  such  companies  are  incorporated.  In 
doing  this  business  the  acts  of  such  agents,  and  their  j^osses- 
sion  of  the  corporate  property,  must  be  considered  as  the 
acts  and  possession  of  the  company;  and  they  cannot  be 
held  as  its  trustees." 

The  court  again  lay  down  a  limitation  thus,  on  the  doc- 
trine herein  advanced:  "This  principle,  however,  does  not 
apply  when  the  person  having  such  possession  does  anything 
to  prevent  the  goods  from  being  attached  as  the  property  of 
the  debtor;  by  concealing  them,  or  refusing,  on  request,  to 
expose  them,  or  by  asserting  any  claim  to  them  himself,  or  in 
any  other  manner,  he  would  then  be  liable  to  the  trustee 
process."'  Sweet  v.  Brown,  5  Pick.  17N;  Hooper  v.  Ihn/,  i;> 
Me.  5f).  "Nor  has  this  doctrine  ever  been  applied  to  a  depos- 
itory of  money.  Though  coin  and  bank  notes  are  now  attach- 
able, and  may  be  taken  on  execution,  practically  thc3'  can 
very  seldom  'become  at  to  be  attached,'  and  they  dilTer  from 
all  other  property  in  this  respect;  and  there  are  cases  in 
which  one  holding  a  particular  fund  merely  on  deposit,  claim- 


5  1:4  GARNISHMENT. 

ing  110  interest  in  it,  may  be  chargeable  as  trustee.  Bell  v> 
Gilbert,  12  Met.  897;  Im.  Co.  v.  Holbrook,  4  Gray,  235." 
The  owner  of  the  fund  can  have  no  reason  to  complain,  and 
any  other  rule  would  encourage  fraud. 

On  the  2:)rinciples  alcove  stated,  the  cashier  of  a  bank,  in 
which  are  deposited  the  funds  of  a  corporation,  cannot  be- 
garnished  in  a  suit  against  such  corporation,  although  he  is 
its  treasurer,  and,  as  such  treasurer,  deposited  the  funds  in 
the  bank  ;(^)  for,  said  the  court  quaintly,  "A  corporation  could 
hardly  be  summoned  as  trustee  of  itself.  But  to  charge  ita 
officer,  while  holding  its  funds  as  such,  would  be  to  charge  it 
as  trustee  of  itself.  It  would  be  to  determine  that  the  trustee 
held  the  funds  as  an  individual,  and  not  as  an  officer,  which 
is  not  the  fact."  And  the  court  goes  on  to  remark:  "The 
supposed  trustee,  individually,  has  no  goods,  effects,  or  cred- 
its of  the  defendant  corporation  entrusted  to  or  deposited  with 
him.  As  its  treasurer  he  holds  the  funds  as  an  officer  of 
the  corporation.  They  are  funds  held  by  the  corporation 
through  its  treasurer.  It  is  the  only  mode  by  which  a  cor- 
poration can  hold  its  funds.  Such  funds  so  held  are  noi^ 
goods,  effects,  or  credits  of  the  principal  debtor,  entrusted  to  or 
deposited  with  the  supposed  trustee,  but  are  the  funds  of  the 
corporation  in  its  own  custody,  and  in  charge  of  its  appro- 
IDriate  officer." 

But  it  is  held  differently  in  Kansas,  in  regard  to  a  foreign 
corporation,  so  that  the  treasurer  of  the  corporation,  having 
its  assets  in  his  hands,  subject  to  the  order  and  control  of 
the  directors,  can  be  garnished. (/) 

§  561.  Money  deposited  with  a  mercantile  firm  cannot, 
without  any  specific  direction  as  to  the  application  of  it,  ap- 
ply it  to  the  payment  of  a  note  of  the  holder,  indorsed  to  the 
firm  for  collection ;  but  the  money  so  deposited  is  liable  to 
garnishment,  in  an  attachment  suit  against  the  depositor. (w) 

§  502.  Where  an  attorney  at  law  had.  when  a  garnish- 
ment summons  was  served  on  him,  a  check  drawn  In'  the  de- 
fendant in  the  suit,  to  satisfy  an  execution  in  another  action, 

(A-)Sprague  v.  Navigation  Co.  52  {/) Wheat  v.  K.  R.  4  Kan.  376. 

Me.  593.  (m)Vance  v.  Geib,  27  Tex.  273. 


GARNISHMENT.  545 

the  check  being  not  indorsed,  and  not  presented  for  payment 
till  after  service,  and  on  subsequent  presentation  paid,  and 
the  proceeds  held  when  he  answered  to  the  summons,  it  was 
held  lie  was  not  liable  as  garnishee. (/i) 

55  503.  In  a  case  where  a  husband  traded  a  manufacturin'^ 
establishment,  with  the  machinery,  for  a  tract  of  land,  and, 
to  defraud  his  creditors,  took  the  conveyance  to  his  wife  and 
subsequently  sold  the  land,  and  for  the  payment  took  a  note 
for  a  part  of  the  price,  payable  to  his  wife,  which  she  held 
until  after  it  matured,  and  until  the  maker  was  garnished  by 
a  creditor  of  the  firm  of  which  the  husband  had  been  a  mem- 
ber, in  the  manufacturing  business,  it  was  held  that,  as  no 
rights  of  innocent  assignees  were  involved,  the  note  was  sub- 
ject to  the  garnishment.  (0) 

§  564.  In  states  where  municipal  corporations  are  subject 
to  garnishment,  a  summons  may  issue  to  make  available  the 
salary  or  wages  of  a  policeman  still  unpaid,  to  satisfy  a  judg- 
ment against  him,(p)  but  not  wages  to  be  earned  by  future 
services  or  not  yet  due. (5) 

§  565.  An  amount  due  from  an  employer  to  a  contractor, 
who  has  so  broken  his  contract  as  to  give  the  employer  a 
right  to  divert  the  payment  to  workmen  under  the  contractor, 
is  not  subject  to  garnishment;  as,  for  instance,  where  the 
contract  in  writing  was  that  if  the  contractor  failed  to  pay 
the  workmen  the  employer  might  do  so  out  of  the  contract 
money,  and  the  contractor  did  so  fail,  it  was  held  that,  not- 
withstanding the  service  of  the  writ,  the  employer  had  a 
right  to  apply  the  contract  money  to  the  payment  of  the 
workmen  for  labor  previously  performed. (r)  Where,  however, 
the  employer  is  liable  under  the  garnishment,  and  a  part  of 
the  amount  due  is  for  the  individual  services  of  the  con- 
tractor, and  a  part  for  the  profits  resulting  from  labor  hired 
by  the  contractor,  so  that  the  employer  has  the  right  of  ap- 
propriating payments  to  either  account,  or  in  his  default  of 
making  the  appropriation,  the  employe  may  do   so.  and  in 

( /I) Hancock w.Colyer,  99Mass.lS7.  (7)City  of  Newark  v.  Fimk,  jr.  <). 

(o)Palton  V.  Gates,  67  111.  105.  St.  4(54. 

(;))Uit3'   of   Montgomery   v.    Van  (r)Uoyle  0.  Gray,  110  Muss.  liOU. 

Dorn,  41  Ala.  r,0->. 
V.l— 35 


54:6  GARNISHMENT. 

default  of  both  the  law  will  appropriate,  the  attaching  cred- 
itor succeeds  to  all  the  contractor's  rights,  and  he  may  elect 
as  to  the  appropriation,  or  leave  it  to  the  law,  which  will 
make  it  in  a  manner  that  will  most  benefit  him.(.s) 

§  566.  It  is  held  that  money  held  by  one  as  a  security  or 
indemnity  against  danger  of  loss  in  becoming  bail  for  another 
may  be  garnished. (?) 

§  567.  Claims  arising  under  an  insurance  policy  are  not 
subject  to  garnishment  until  adjustment,  since,  until  then, 
they  are  unliquidated. (m) 

§  568.  In  Iowa  it  is  held  that  a  guest  maybe  garnished  by 
a  creditor,  in  an  action  against  the  innkeeper,  unless  the  inn- 
keeper requires  his  guest  to  pay,  or  pledge  payment,  in  ad- 
vance, when  no  indebtedness  arises  on  which  a  garnishment 
can  \ie.{v) 

§  569.  A  creditor  of  a  fraudulent  mortgagor  may,  in  Iowa, 
instead  of  proceeding  in  equity  to  set  aside  the  mortage,  or 
levying  upon  the  property  and  claiming  the  right  to  sell  it, 
reach  the  i^roperty  mortgaged  by  garnishing  the  mortgagee,  (u-) 
But  the  rule  is  different  in  New  Hampshire,  and  there  the  in- 
come of  lands  fraudulently  conveyed  cannot  be  charged  when 
there  is  no  attempt  to  avoid  the  conveyance,  (a:)  And,  in 
Vermont,  while  it  is  not  expressl}'  decided,  it  seems  clearly 
intimated,  that  a  fraudulent  grantee  of  real  estate,  who  has 
sold  the  iDroperty,  cannot  be  garnished  for  the  avails  in  his 
hands.  (^) 

In  Wisconsin  a  debtor's  fraudulent  assignment  of  an  inter- 
est in  a  contract  may  be  treated  by  the  creditor  as  a  nullit}-, 
and  parties  may  be  garnished  for  his  debt,  who,  by  the  terms 
of  the  assignment,  would  be  indebted  to  the  assignee.  (^) 

Under  a  valid  trust  deed,  wherefrom  not  enough  has  been 
realized  to  meet  the  full  claims  and  demands  of  the  trustees, 
these  cannot  be  charged  as  to  money  in  their  hands  proceed- 
ing from  it,  since  as  mortgagees  they  have  a  right  to  hold  the 

(s)Smitli  V.  Brooke,  49  Pa.  St.  147.  (w)Brainard  v.  Van  Kuran,  22  la. 

(<)Elhs  V.  Goodnow,  40  Vt.  240.  266. 

(w)McKean  D.Turner,  45  N.H.  203.  (j;)Hevwoodf).Brooks,47N".H.234. 

(«) Caldwell  v.  Stewart,  30  la.  379.  (^)Stevens  v.  Kirk,  37  Vt.  208. 

(2)Prentiss  v.  Danaher,  20  Wis.  311, 


GARNISHMENT.  547 

security  till  their  debt  is  paid,  so  that  if  the  creditor  claims 
that  there  is  a  surplus  of  property  he  must  redeem  it  b}^  pay- 
ing the  lien  of  the  trustees.(a) 

§  570.  A  consignee  of  goods  who  has  agreed  to  make 
advances  thereon,  to  half  the  value  or  more,  by  promissory 
notes,  and  has  been  authorized,  in  case  of  danger  of  garnish- 
ment, in  an  action  against  the  consignor  to  appoint  another 
person  as  the  consignor's  agent,  has  been  held  not  liable  for 
the  amount  of  notes  given  just  before  service  to  his  own 
clerk,  as  agent  of  the  consignor,  on  purpose  to  avoid  being 
charged.  (&) 

§  571.  Where  a  spendthrift  has  been  placed  under  guard- 
ianship it  has  been  held  that  a  garnishment  lies  as  to 
effects  in  his  guardian's  hands,  and  a  creditor  is  there- 
fore not  confined  to  suit  on  the  guardian's  bond,  on  refusal 
to  pay  his  claim,  (c) 

§  572.  Where  a  town  is  garnished,  which  is  owing  defend- 
ant for  professional  services,  it  is  held  that  it  cannot  in  the 
garnishment  suit  claim  a  set-off  on  account  of  taxes  due  it 
from  defendant ;  on  the  ground  that  a  tax  is  neither  an 
express  nor  implied  contract,  (f/) 

§  573.  Where  military  bounties  are  voted  by  a  municipal 
corporation  they  cannot,  while  in  the  hands  of  the  municipal 
officers,  be  garnished,  in  New  Hampshire.  But,  of  course, 
after  a  bounty  has  been  paid  over  to  a  third  person,  by  the 
order  of  the  volunteer,  it  is  liable  like  any  other  funds,  (c) 

§  574.  One  who  is  twice  garnished  for  the  same  debt  may 
obtain  a  stay  of  proceedings  in  the  second  action,  on  affi- 
davits, by  motion ;  but,  if  he  neglects  this  remedy,  equity  will 
not  interfere  to  save  him  from  the  consequences  of  bis  neg- 
lect.(/) 

§  575.  If,  after  service  of  process,  a  garnishee  delivers  prop- 
erty of  the  principal  debtor  to  a  receiver,  afterwards  appointed, 
in  another  action,  to  take  charge  of  all  the  debtor's  property — 

(a)McGregor  e.  Chase,  37  Vt.  230.  (fZ).Iohnsou  v.  Howard,  41  Vt.  125. 

(6)Collins  t).  Smith,  12  Gray,  431.  («)Mancliester  v.  Burns,  45  N.  H. 

(c)Hicks  V.  Chapman,  10  Allen,  4S2;  ]\Ior.sc  «.  Towns,  Id.  1^5. 

463.  (/)Danaher«.rrentiss,  22Wis.311. 


5  48  GARNISHMENT. 

as  of  a  railroad  corporation's  property — he  does  so  at  bis  peril, 
l)nt  will  have  the  right  to  show  that  the  receiver  was  entitled 
to  take  the  property  as  against  the  garnishment  plaintiff. (^f) 

§  576.  Where  property  is  delivered  by  a  garnishee  to  an 
officer,  under  execution,  the  owner  may  claim  exemj)tions  the 
same  as  if  the  property  had  been  taken  from  him;  and  so  a 
deposit  in  a  bank  may  be  held  exempt,  under  a  statute  ex- 
empting one  hundred  dollars'  worth  of  i3ro[)erty,  specifically, 
suitable  to  condition  in  life,(}i)  when  the  bank  is  summoned 
as  garnishee. 

Under  a  statute  which  jjrovides  "that  any  negotiable  paper 
which  shall  be  actually  assigned,  negotiated,  and  transferred 
to  any  bank  before  it  becomes  due,  shall  be  exempt  from  gar- 
nishment," the  meaning  is  held  to  be  that  the  fact  of  such 
transfer  has  the  effect  to  work  an  exemption  of  the  ]3aper,  and 
that  herein  it  makes  no  difference  whether  previously  process 
of  garnishment  had  been  served  that  would  hold  the  debt  if 
no  such  transfer  had  taken  place,  where  the  bank  discounted 
the  paper  in  good  faith,  in  the  ordinary  course  of  business, 
and  without  notice  of  the  garnishment,  (i) 

But  it  is  held  that  the  United  .States  statute  of  186G,  pro- 
viding that  no  sum  due,  or  to  become  due,  to  any  pensioner 
shall  be  liable  to  attachment  while  in  course  of  transmission 
to  him,  does  not  apply  to  a  sum  which,  at  the  time  the  act 
took  effect,  had  already  been  paid  to  a  pensioner's  agent  at 
his  request,  so  that  the  agent  was  liable  to  garnishment,  (j) 

Where  an  employer  is  garnished  he  may,  notwithstanding 
the  service  of  the  process,  continue  to  j)ay  the  employe  wages 
by  instalments,  so  as  to  keep  the  payments  each  below  the 
amount  exempted  by  statute.  (A:)  And,  even  if  a  contract  be 
terminated  after  a  writ  is  served,  and  a  new  one  entered  into 
at  the  same  salary,  payable  weekly  or  monthly  in  advance, 
but  still  keeping  payments  within  the  exempt  amount,  it  will 
make  no  difference  as  to  the  liability.  (Z) 

(.7)Crerar  »;.  R.  R.  35  Wis.  GS.  (jjKfllosrg    v.    Waite,    12   Allen, 

(/i) Fanning  v.  Bank,  76  III.  53.  529. 

(^■)Hall  V.  Bowker,  44  Vt.  77.  (^:) Davis  v.  Meredith,  48  Mo.  263. 

(ijHoffman  «.  Fitzwilliam,  (unreported,)  8  Chi.  L.  N.  No.  44. 


HABEAS    COBFUS.  549 


CHAPTER  XIX. 

HABEAS  CORPUS. 

i  577.  Nature  of  the  writ. 

578.  Power  to  issue  it. 

579.  Inquiry  iuto  jurisdiction. 

580.  Imprisonment  for  obeying  United  States  laws,  etc. 

581.  Power  of  appellate  court. 

582.  Sentence  by  de  facto  judge. 

583.  Fugitives  from  justice. 

584.  Wliethcr  constitutionality  of  laws  may  be  examined. 

585.  Proof  as  to  legalit}'  of  detention. 

586.  Commitments  for  contempt. 

587.  Inquiry  as  to  the  nature  and  validity  of  process. 
5s8.   Unlawful  enlistments  of  minors. 

589.  Custody  of  children. 

590.  Criminal  cases  where  indictment  is  found — sentence. 

591.  Arrests  on  civil  process. 

592.  Bail. 

693.  Joint  indictments  when  only  one  is  tried. 

594.  Inquiries  as  to  the  legality  of  a  sentence. 

595.  Recognizance  of  appeal. 

596.  Lunacy. 

597.  Vacation — parties — appeals — jury. 

598.  Suspension  of  writ. 

§  577.  This  great  writ  of  personal  right  has  for  its  object 
the  liberation  of  those  who  are  imprisoned  without  sufdcient 
cause,  and  it  is,  therefore,  in  the  nature  of  a  writ  of  error  to 
examine  the  legality  of  the  commitment ;  yet  it  does  not  issue 
as  a  matter  of  course  on  application,  and,  hence,  if  the  defect 
or  illegality  does  not  appear  on  the  face  of  the  proceedings, 
an  affidavit  is  necessary,  setting  forth  the  circumstances 
under  which  the  person  imprisoned  is  entitled  to  its  bene- 
fits. («)     One  committed  on  a  criminal  charge  is  entitled  to 

(«)Keeler's  Case,  1  Hemp.  C.  C.      impyiaonmciit  must  be  shown  in  or- 

307.  der  to  invoke  the  jurisdiction,  and 

The  general  rule  is  that  an  illegal      when  this  appears  the  writ  will  be 


550  HABEAS    CORPUS. 

the  writ  as  a  matter  of  right,  unless  he  was  committed  or  de- 
tained by  virtue  of  the  final  judgment  of  a  competent  court,  (6) 
when  the  court  will  not  inquire  into  the  sufficiency  of  the 
cause  of  commitment,  (c)  It  is  a  privilege  secured  to  every 
citizen  by  the  national  and  state  constitutions,  which  can  only 
be  susjjended  or  withheld  when  in  cases  of  rebellion  or  inva- 
sion the  public  safety  may  require  it.(r/)  The  power  to  pro- 
tect personal  liberty  is  essential  to  the  sovereignty  which 
claims  the  allegiance  of  the  citizen. (e) 

§  578.  The  power  to  issue  the  writ  belongs  essentially  to 
courts  alone,  and  cannot  properly  be  delegated  to  a  mere 
court  commissioner.(/)  And,  as  to  the  courts  which  may 
exercise  the  power,  the  true  doctrine  is  that  the  state  courts, 
in  their  sj)here,  and  the  United  States  courts,  in  their  sphere, 
have  exclusive  jurisdiction,  and  therefore  the  state  courts 
have  no  authority  to  issue  the  writ  in  any  ease  where  a  pris- 
oner is  detained  under  the  authority  of  the  United  States. (f/) 
However,  a  United  States  court  may  issue  a  writ  of  habeas 
corpus  where  one  has  been  arrested  by  state  authority  within 
waters  contiguous  to  a  United  States  navy  yard,  and  neces- 
sary to  float  vessels  there  stationed,  because  such  waters  are  a 
part  of  the  navy  yard,  and  are,  therefore,  within  the  exclusive 
jurisdiction  of  the  United  States.  Tatem's  Case,  1  Hugh,  588. 
But  a  state  court  or  judge,  duly  authorized,  may  issue  the 

granted,    except    upon     the    most  suing  the  writ.     O'Malia  v.  Went- 

weighty  considerations  to  the  con-  worth,  (Jo  Md.  130.    And  the  state- 

trary.     Pierce's  Case,  44  Wis.  411.  nient  of  facts  showing  illegality  in 

And  on  a  legal  process,  holding  a  the   imprisonment   is  imperatively 

prisoner,  a  writ   of    hahrafi  corpus  necessary  in  all  cases.    Allan's  Case, 

raises  only  the  question  of  jurisdic-  12  Nev.  87.     And  the  discretion  of 

tion.     Eldred's  Case  ;  Ford's  Case,  a  court  will  not  be  interfered  with 

46  Wis.  530.     And  so  the  court  is-  unlessit  has  been  manifestly  abused, 

suing     the     writ     cannot     inquire  Bentley  v.  Terry,  59  Ga.  555. 

whether  an  indictment,  regular  on  (/*)People  v.  Mayer,  6  Barb.  362. 

its  face,  was  ever  found  by  the  grand  {c)  Kearney's  Case,  7  Wheat.  39. 

jury,  (Twohig  &  Fitgerald's  Case,  (d)Collier's  Case,  6  O.  St.  55. 

13  Nev.  302  ;)  nor  test  the  legality  of  (f)Booth"s  Case,  3  Wis.  157. 

the  grand  jury.     State  v.  Fender-  (/)Buddington's   Case,  29  Mich, 

son,  28  La.  An.  82  ;  State  «.  Thomp-  474. 

son,   Id.    187.      And   a    court  will  ((/jTarble's  Case,  13  Wall.  397. 
exercise  a  sound  discretion  as  to  is- 


HABEAS    CORPUS.  551 

VfYit  in  any  case  where  a  party  is  imprisoned  within  its  terri- 
torial limits,  provided  it  does  not  appear,  when  the  applica- 
tion is  made,  that  the  person  imprisoned  is  in  custody  unde? 
the  authority  of  the  United  States. (/i) 

§  579.  The  chief  inquiry,  under  a  writ  of  habeas  corpus,  is 
into  the  jurisdiction  of  the  court  which  authorized  the  com- 
mitment. For  instance,  the  courts  of  the  United  States  have 
no  authority  in  this  way  to  inquire  into  the  merits  of  a  de- 
cision made  by  a  committing  magistrate,  and  to  determine 
that  he  erred  in  his  construction  of  the  law  or  the  evidence, 
but  it  will  only  inquire  whether  the  prisoner  stood  charged, 
before  the  magistrate,  with  a  criminal  offence,  subjecting 
him  to  imprisonment,  and  whether  the  magistrate  had  com- 
petent authority  to  inquire  into  and  adjudge  uj)on  the 
charge. (i)  And,  in  such  proceedings,  the  United  States 
courts  are  not  governed  by  state  laws  on  the  subject  of  habeas 
corpus,  but  by  the  common  law  of  England,  as  it  stood  when 
the  national  constitution  was  adopted,  subject  to  alterations 
by  acts  of  congress;  and  under  that  system  a  decision  under 
one  writ,  refusing  to  discharge  a  prisoner,  is  no  bar  to  the 
issuing  of  any  number  of  other  successive  writs  by  any  court 
of  competent  jurisdiction.  And  so,  where  one  was  arrested 
under  an  extradition  treaty  between  the  United  States  and 
Great  Britain,  and  was  committed  under  the  arrest,  a  circuit 
court  of  the  United  States  refused  a  discharge  in  a  habeas  cor* 
j^us  proceeding,  and  it  was  held  that  this  was  no  bar  to  the 
issuing  of  a  writ,  sub-equently,  by  a  justice  of  the  supreme 
court,  to  inquire  into  the  legality  of  the  detention,  (j)  I  pre- 
sume, however,  the  rule  would  not  work  well  the  other  way, 
so  as  to  authorize  a  second  writ,  by  an  inferior  court,  when 
the  superior  has  refused  a  discharge.  Nor  does  it  apply  to  a 
writ  refused  by  a  state  court  to  one  imprisoned  under  state 
authority,  in  which  case  a  United  States  court  or  judge  has 
no  right  to  interfere  at  all. 

An  inquiry  into  the  jurisdiction  is  not  barred  by  an  actual 

(/;)Hill's  Case,  5  Nev.   154;  Bar-  (-«')Van  Aernam's  Case,  3  Blatchf. 

rett's  Case,  42  Barb.  479;  Hopson's      C.  C.  ICl. 
Case,  40  Barb.  35.  (i)Kainc's  Case,  3  Blatcli.  C.  C.  1. 


552  HABEAS    CORPUS. 

conviction  and  partial  execution  of  a  sentence  for  felony;  but 
the  writ  cannot  reach  the  cell  of  a  state  prison,  and  annul  a 
sentence,  pronounced  by  a  court  without  jurisdiction. (/c) 

§  580.  If  an  officer  of  the  United  States  is  imprisoned  by 
state  authority,  for  executing  a  process  of  the  United  States 
courts,  these  courts  have  the  power  to  release  the  officer  on 
habeas  corjous.il) 

§  581.  It  is  held  that  an  appellate  court  cannot  inflict  a 
higher  penalty  for  an  offence  than  the  court  appealed  from 
could  have  imposed;  so  that,  if  the  original  court  could  only 
punish  by  fine  or  imprisonment,  the  appellate  court  cannot, 
in  a  case  appealed,  punish  by  fine  and  imprisonment,  not- 
withstanding its  own  original  jurisdiction  is  not  transcended 
by  such  sentence;  And  where  such  sentence  is  passed,  and 
the  fine  is  paid,  a  still  higher  court  may  discharge  the  pris- 
oner, although  a  writ  of  error  is  the  ordinary  remedy  for  an 
error  in  the  lower  or  intermediate  court.  So  held  in  Massachu- 
setts, (m)  But  it  is  quite  doubtful  whether  such  a  transcending 
of  jurisdiction  would  justify  a  writ  in  most  other  states.  In 
Ohio  it  has  been  decided  expressly  that  errors  or  irregulari- 
ties occurring  in  the  sentence  of  a  court  of  competent  juris- 
diction, cannot  be  corrected  except  on  writ  of  error,  unless 
the  sentence  is  an  absolute  nullit3\(/<)  And  a  habeas  corpus 
is  not  a  writ  of  error,  nor  can  it  be  used  to  authorize  the  exer- 
cise of  appellate  jurisdiction. (o) 

(A) Miller  ».  Snj-der,  6  Ind.  1.  ularities  as  make  a  judgment  merely 

(ZjRubinson's  Case,  6  McLean,  C.  voidable,  but  only  such  as  render  it 

C.  355  ;  and  so  a  private  person  im-  void     (McGill's    Case,    6   Tex.    Ct. 

prisoned  for  obeying  an  act  of  con-  App.  498)  for  want   of  jurisdiction 

gress,  (Bull'sCase,  4  Dill.  323.)    See  or  other  cause.   Parks'  Case,  93  U. 

an   electoral    college   case,    of    the  S.  18.     Error  is  not  to  be  inquired 

electoral  college  of  South  Carolina,  into  on  habeas  corpus  proceedings. 

(1    Hugii,   570.)     And    see   Engle's  Granice's  Case,  51  Cal.  375;  Farn- 

Case,  Id.  502.  ham's  Case,  3  Cal.  545  ;  Bond's  Case, 

(m)Feeley's  Case,  12  Cush.  598.  9  S.  C.  SO.     The  object  of  a  writ  of 

(ftjSbaw's  Case,  7  O.  St.  81.  haheas corpus  is  not  intended  to  reg- 

((/)  Winston's  Case,  9  Nev.  71.  ulate  the  criminal  "nusiness  of  an  in- 

A  writ  of  habeas  corpus  cannot  be  ferior  court, (Larkin's  Case,  11  Xev. 

allowed  to  have  the  force  or  effect  90;)  nor  to  revise  the  proceedings  of 

of  an  appeal,  writ  of  error,  or  certio-  even  a  court  martial,  (People  ex  rel. 

rari.     It  does  not  reach  such  irreg-  v.  Fullerton,  10  Hun.  63  ;)  or  for  re- 


HABEAS    COEPUS.  55.*! 

But,  if  a  court  passes  sentence  for  a  longer  period  than  the 
law  allows,  the  Missouri  court  holds  that  the  sentence  is  void, 
and  a  habeas  corpus  will  lie;  but  this  is  under  a  statute 
authorizing  expressly  a  writ  where  jurisdiction  has  been 
merely  exceeded. (p)  In  Alabama  it  has  been  held,  but  with 
considerable  hesitation,  and  with  the  dissent  of  one  of  the 
judges,  that  habeas  corpus  will  lie  where  a  sentence  has  not 
been  strictly  pursued  by  the  officer;  as,  for  instance,  where  a 
prisoner,  sentenced  to  perform  hard  labor  for  the  county  for 
a  specified  period,  is,  instead,  imprisoned  in  the  jail.  Pear- 
sen  s  Case,  59  Ala.  655. 

§  582.  Where  sentence  is  passed  b}^  a  de  facto  judge,  exer- 
cising the  judicial  office  without  any  real  right  to  do  so,  it 
cannot  properly  be  examined  on  habeas  corpus. [q) 

§  583.  Where  an  alleged  fugitive  from  justice  is  charged 
with  crime,  merely  by  affidavit,  from  which  it  evidently  ap- 
pears that  no  crime  has  been  committed,  it  seems  that  a 
court  may  properly  interfere  to  discharge  him  by  habeas  cor- 
inis,  notwithstanding  the  executive,  upon  whom  the  requisi- 
tion has  been  made,  has  granted  a  warrant  upon  which  the 
refugee  has  been  arrested  ;  provided  no  indictment  has  been, 
as  yet,  found  in  the  demanding  state,  (r)     This  seems  in  part 

viewing  any  orders  or  judgments  State  ex  rel.  Fagin,  28  La.  An.  837; 

of  a  court  of  competent  jurisdirton,  Darap  «.   Westeriage,  44  Tex.  388. 

(Semler's  Case.  41   Wis.   518;)  nor  However,  a  pri.soner  may  in  this 

can  a  writ  be  made  to  serve  in  the  way  assert  the  right  to  give  bail, 

place  of  a  plea  in  abatement  or  a  even  if  it  could  be  done  by  motion 

motion  to  quash,  (O'Malia  v.  Went-  in  the  court  below.     Walker's  Case, 

worth,   65   Me.    130  ;)    nor  does    it  3  Tex.  Ct.  App.  (j(J9. 

matter  how  gross  are  the  irregular-  It  is  lield  in  Nevada  that,  where 

ities  in  a  final  judgment,  they  can-  there  has  been  a  legal  jeopardy,  it  is 

not  be  rectified  by  a  writ  of  habeas  equivalent  to  an  aquittal,  so  that 

c./rpits,  (Sam's  Case,  51  Ala.  34;)  nor  the  prisoner  is  entitled  to  his  dis- 

does  it  matter  what  the  consequence  charge  on  motion;  but  habeas  corpus 

is,  even   if  it  be  imprisonment  in  will  not  lie  in  such  a  case.     Max- 

the  penitentiar}',   (Schenck's  Case,  well's  Case,  11  Nev.  428. 

74  N.   C.  CU7;)  nor  will  the  court,  (7j)Page's  Case,  49  Mo.  292,  294. 

on  habeas  corpus,  examine  the  de-  ((7)Griffin's   Case,  25  Tex.   (Sup.) 

cis!onsof  law  made  in  the  case,  any  642;  Call's  Case,  2  Tex.  Ct.  of  App. 

more  than  questions  of  fact.    Fish-  497. 

er's    Case.    6   Neb.   309.     See,   also,  (r)Oreenough's  Case,  31  Vt.  279 ; 

People  ex  rel.  v.  Phelps,  14  Ilun.  21;  People  «.  Ueilley,  11  Ilun.  89. 


654  HABEAS    CORPUS. 

to  be  on  the  ground  that  while  the  courts  have  no  power  to 
control  executive  discretion  in  surrendering  fugitives  from 
justice,  or  to  compel  a  surrender  in  such  case,  3^et  when  the 
executive  has  acted,  the  discretion  may  be  examined  in  every 
case  where  the  liberty  of  the  citizen  is  involved ;  and,  also,, 
while  an  affidavit  need  not  set  out  a  crime  with  all  the  legal 
exactness  required  in  an  indictment,  yet  it  must  distinctly 
charge  an  offence, (s) 

An  executive,  however,  is  not  warranted  in  interfering  with 
courts  in  the  exercise  of  their  dut}'  under  habeas  corpus  pro- 
ceedings. On  this  the  supreme  court  of  the  United  States 
remark,  in  a  historical  view  of  the  matter:  "The  j)eople  of 
this  country  could  hardly  be  brought  to  allow  an  interference 
of  the  president  with  the  judges  in  any  degree.  The  experi- 
ment was  made  during  Mr.  Adams'  administration,  in  1799, 
and  signally  failed.  Jonathan  (or  Nathan)  Bobbins  had  been 
arrested  as  a  fugitive,  under  the  twenty-seventh  article  of  Jay's 
treaty,  for  murder  in  the  British  fleet.  He  was  imprisoned  at 
Charleston,  under  a  warrant  of  the  district  judge  of  South  Caro- 
lina, and  had  been  confined  six  months,  when  the  secretary  of 
state  addressed  a  letter  to  the  judge,  mentioning  that  applica- 
tion had  been  made  by  the  British  minister  to  the  president  for 
the  delivery  of  Bobbins  according  to  the  treaty.  The  letter 
said:  'The  president  advises  and  requests  you  to  deliver  him 
up.'  On  this  authority  the  prisoner  was  brought  before  the 
district  court  on  habeas  corpus,  and  his  case  fairly  enough 
heard,  to  all  appearance,  from  the  accounts  we  now  have  of  it, 
and  the  judge  ordered  the  surrender  in  the  following  terms : 
'I  do  tlierefore  order  and  command  the  marshal,  in  whose  cus- 
tody the  prisoner  now  is,  to  deliver  the  body  of  the  said 
Nathan  Bobbins,  alias  Thomas  Nash,  to  the  British  consul,  or 
such  person  or  persons  as  he  shall  appoint  to  receive  him,' 
The  prisoner  was  accordingly  delivered  to  a  detachment  of 
federal  troops  stationed  there  to  aid  in  the  surrender,  and 
they  delivered  him  to  an  officer  of  the  British  navy,  who  was 

(.f)Mancliester"s  Case,  5  Cal.  237.      the  couitsof  the  surrendering  state.. 
If  It  does  so  no  formal  defect  in  an      Davis'  Case,  122  Mass.  324, 
iudictmeut   will   be  considered  b}' 


HABEAS    CORPUS.  555 

ready  to  receive  him  on  board  of  a  vessel  of  war,  in  wliich  he 
was  carried  away.  That  the  judge  acted  by  order  of  the  presi- 
dent, and  in  aid  of  the  executive  department,  was  never  dis- 
puted, and  the  then  administration  was  defended  on  the 
ground  that  the  treaty  was  a  compact  between  nations,  and 
might  be  executed  by  the  president  throughout,  and  must  be 
thus  executed  by  him  until  congress  vested  the  courts  or 
judges  with  power  to  act  in  the  matter,  which  had  not  been 
done  in  that  instance.    5  Pet.  Ap.  19 ;  7  Am.  Law  Jour.  13. 

"The  subject  was  brought  to  the  notice  of  the  house  of  rep- 
resentatives in  congress  by  resolutions  impeaching  the  pres- 
ident's conduct  in  Robbins'  case,  and  where  Mr.  Marshall 
(afterwards  chief  justice  of  this  court)  made  a  speech  in 
defence  of  the  president's  course,  having  much  celebrity  then 
and  since  for  its  ability  and  astuteness.  But  a  great  major- 
ity of  the  people  of  this  country  were  opposed  to  the  doctrine 
that  the  president  could  arrest,  imprison,  and  surrender  a 
fugitive,  and  thereby  execute  the  treaty  himself;  and  they  were 
still  more  opposed  to  an  assumption  that  he  could  order  the 
courts  of  justice  to  execute  his  mandate,  as  this  would  destroy 
the  independence  of  the  judiciary  in  cases  of  extradition, 
and  which  example  might  be  made  a  precedent  for  similar 
invasions  in  other  cases ;  and  from  that  day  to  this  the  judi- 
cial power  has  acted  in  cases  of  extradition  and  all  others 
independent  of  executive  control.  That  the  eventful  history 
of  Eobbins'  case  had  a  controlling  influence  on  our  distin- 
guished negotiator  when  the  treaty  of  18-1:2  was  made,  and 
especially  on  congress,  when  it  jDassed  the  act  of  IS-iS,  is,  as 
I  suppose,  free  from  doubt.  The  assumption  of  the  power  to 
arrest,  imprison,  and  extrude  on  executive  warrants,  and  the 
employment  of  a  judicial  magistrate  to  act  in  obedience  to 
the  president's  commands,  where  no  independence  existed  or 
could  exist,  had  most  materially  aided  to  overthrow  the  admin- 
istration of  a  distinguished  revolutionary  patriot,  whose  hon- 
nesty  of  purpose  no  fair-minded  man  at  this  day  doubts. 
Public  opinion  had  settled  down  to  a  firm  resolve,  long  before 
the  treaty  of  1842  was  made,  that  so  dangerous  an  engine  of 
oppression  as  secret  proceedings  bafore  the  executive,  and  the 


556  HABEAS    CORPUS. 

issuing  of  secret  warrants  of  arrest  founded  on  them,  and  long 
imprisonments  inflicted  under  such  warrants,  and  then  an 
extradition  without  an  unbiased  hearing  before  an  independ- 
ent judiciary,  were  highly  dangerous  to  liberty,  and  ought 
never  to  be  allowed  in  this  country.  Congress  obviously  pro- 
ceeded on  this  public  opinion  when  the  act  of  1848  was 
passed,  and  therefore  referred  foreign  powers  to  the  judiciary, 
when  seeking  to  obtain  the  warrant  and  secure  the  commit- 
ment of  the  fugitive,  and  which  judicial  proceeding  was  in- 
tended to  be  independent  of  executive  control,  and  in  advance 
of  executive  action  on  the  case;  and  such  has  been  the  con- 
struction and  consequent  practice  under  the  act  of  congress 
and  treaty  by  our  executive  department,  as  we  are  informed, 
on  application  to  that  department.  What  aid  the  executive 
will  afford  to  a  foreign  government  through  its  prosecuting 
attorneys,  in  cases  arising  under  treaties,  rests  witli  itself,  and 
not  with  us,  as  acts  altogether  independent  of  the  judiciary. "(/) 

On  the  other  hand,  after  a  commitment  of  the  accused  for 
surrender,  and  even  after  a  refusal  to  discharge  him  on  habens 
corpus,  the  president  may  lawfully  decline  to  surrender  him, 
either  on  the  ground  that  the  case  is  not  within  the  treaty,  or 
the  evidence  is  not  sufficient  to  establish  the  charge  of  crim- 
inality. («t) 

Where  the  governor  of  Illinois  had  issued  a  warrant  on  a 
requisition  from  the  governor  of  Missouri  whereby  Joseph 
Smith,  the  Mormon  impostor,  was  to  be  delivered  to  the  Mis- 
souri authorities  for  a  crime  which,  as  it  turned  out,  was,  if 
committed  at  all,  committed  in  the  state  of  Illinois,  the  United 
States  circuit  court  released  him  on  habeas  corpus. (v)  In  Del- 
aware, however,  it  has  been  held  that  the  courts  are  power- 
less to  examine  into  facts  and  circumstances  connected  with 
the  alleged  offence  after  the  governor's  warrant  has  been 
issued.  (?r) 

§  584,  As  to  whether,  on  habeas  corpus,  the  constitution- 
ality of  a  law  under  which  the  commitment  took  place  can 
be  examined,  has  been  variantiy  decided.     The  Texas  court 

(0Kain'sCase,14How.(U.  S.)lll.  (/.ISiuitirs  Case,  3  McLean,  121. 

(u)Stupp's  Case,  12  Blatchf.  501.  («c)State  v.  Sclilemn,  4  llaiT.  579. 


HABEAS    CORPUS.  557 

affirms  the  power,  when  it  is  necessary  to  the  determination 
of  the  question  of  the  legality  of  the  commitment. u)  But  in 
Missouri  the  power  is  denied,  and  it  is  declared,  even  without 
the  statute  on  which  the  decision  is  based,  that  the  authority 
would  be  impolitic  ;  for,  "admit  this  proceeding,  and  then  every 
person  charged  with  committing  an  offence  of  any  kind  or 
description  whatsoever,  instead  of  standing  his  trial  and  liti- 
gating the  matter  as  the  law  directs,  can  come  here  and  ask 
our  advice  as  to  the  validity  of  the  law  under  which  he  is 
arraigned.  Such  a  precedent  cannot  be  established,  and  the 
legislature  clearly  saw  the  impolicy  of  the  proceeding,  and 
placed  a  prohibition  upon  it."(y) 

§  585.  On  a  return  to  a  writ,  after  commitment  and  before 
indictment,  additional  proof  may  be  received,  in  order  to 
enable  a  judge  to  decide  upon  the  legality  of  a  detention. (^) 

§  586.  On  a  liaheas  corpus,  in  a  case  of  commitment  for 
contempt,  only  two  questions  can  be  examined,  namely  :  Had 
the  court  jurisdiction  to  commit?  and,  Is  the  commitment  in 
legal  form?  If  these  are  answered  in  the  affirmative,  the 
court  issuing  the  writ  can  go  no  further  into  an  inquiry  as  to 
the  propriety  or  justice  thereof. (a)  Thus,  if  it  be  claimed 
that  the  contempt  consists  merely  of  disobedience  to  an 
erroneous  order,  it  will  not  be  inquired  of  whether  the  order 
was  erroneous  or  not.(h) 

(.I'jltodriguez's  Case,  89  Tex.  748.  signment,  nor   his   testimony   that 

(.y) Harris'  Case,  47  Mo.  165.    And  he  is  utterly  unable  to  pay  any  part 

so  in  New  York.     Donahue's  Case,  of  the  amount  lie  had  collected  for 

52  How.  Pr.  251.  his  client,  and  thus  to  comply  with 

(,j)People  V.  Richardson,  4  Park.  the  rule,  could  be  regarded  on  his 

Cr.  65G.  application    for   release    by   habeas 

(a)Pcople   V.    Mit(;hell,    29    Barb.  corpus.     Smith  «.  McLenden,  59  Ga. 

(J22.  523. 

(6) Cohen's  Case,  5  Cal.  494.  But  where  a  court  ordered  an  ex- 
VVhere  an  attorney  had  failed  to  ecutor  to  pay  a  widow  a  definite 
comply  with  a  rule  requiring  him  to  amount  monthly,  during  the  settle- 
pay  over  money  to  hisclient, and  was  mcnt  of  the  estate,  and  on  failing  to 
imprisoned /w  w/i.teTOy><,  it  was  held  comi)ly  was  imprisoned  for  con- 
that  this  was  not  on  imprisonment  tempt,  lie  was  discharged  on  habeas 
lor  debt,  as  prohibited  by  the  con-  rorpua,  on  the  ground  that  the  order 
stitution,  and  that  the  voluntary  merely  created  a  judgment  (k'i)t,  and 
bankruptcy  of  the  attorney,  and  as-  there  was  no  contempt  in  the  case, 


558 


HABEAS    CORPUS. 


I 


§  587.  Yet  it  has  been  held  that  the  writ  will  justify  an 
inquiry  into  the  nature  and  validity  of  process,  if  any,  by 
which  the  detention  of  a  prisoner  is  sought  to  be  justified; 
and,  in  Wisconsin,  by  whatsoever  authority  it  may  have  been 
issued,  even  that  of  the  United  States — a  very  bold  claim, 
but,  in  the  present  case,  decidedly  in  the  interests  of  right 
and  political  justice,  (c) 

§  588.  Habeas  corpus  is  the  proper  writ  to  annul  an  unlaw- 
ful enlistment  of  minors  into  the  army,  whether  citizens  or 
foreigners,  and  at  the  instance  of  a  master,  or  parent,  or  of 
the  minor  himself ;((/)  also  of  a  guardian. (e)  But  no  one  has 
a  right  to  sue  out  a  writ  on  behalf  of  a  minor  unless  he  has 
a  right  to  the  custody  of  the  minor,  or  else  appears  by  the 
request  of  the  minor  and  in  his  Ijelialf,  or  in  behalf  of  a 
guardian  or  other  person  having  the  legal  right  to  the  custody. 
Poole's  Case,  2  McArthur,  583. 


and  a  probate  court  IkkI  no  power, 
more  than  any  other  court,  to  im- 
prison for  debt.  Leacli's  Case,  51 
Vt.  630. 

In  Wisconsin,  where,  in  a  divorce 
case,  a  child  was  awarded  to  the 
father,  and  the  mother  abducted  it 
and  took  it  out  of  the  jurisdiction, 
it  was  held  that,  as  the  father  could 
not  recover  damages  for  the  abduc- 
tion and  detention,  the  mother  could 
not,  under  the  statute,  be  commit- 
ted as  for  a  continuing  contempt, 
although  she  might  be  proceeded 
against  criminally;  and,  being  so  im- 
prisoned, she  was  entitled  to  a  re- 
lease on  habeas  corpus.  Louisa 
Pierce's  Case,  44  Wis.  412. 

But  if,  in  commitment  for  con- 
tempt, a  court  has  regularly  pur- 
sued its  authority,  having  due  juris- 
diction of  the  subject-matter,  habeas 
corp}is^\\]\  not  lie  in  the  case.  Phil- 
lips V.  Welch,  12  Nev.  159.  And  so 
the  regularity  of  a  commitment  for 
contempt,  in  refusing  to  pay  ali- 
mony, will  not  be  reviewed  by  ha- 
beas corpus,  where  the  commitment 


is  regular  on  its  face.    Bissell's  Case, 
40  Mich.  (;3. 

AVhere  one  was  attached  for  con- 
tempt in  refusing  to  obey  an  order 
to  pay  over  money  to  an  admin- 
istrator, and  appeared,  and  was  dis- 
charged from  the  attachment,  and 
yet  was  afterwards  imprisoned  for 
the  same  contempt,  the  commit- 
ment was  held  wholly  void,  so  that 
a  writ  of  habeas  corpus  would  lie, 
(Brown's  Case,  4  Col.  438,)  for  the 
principle  of  res  adjudicata  applies 
strictlj'  in  such  cases.  An}-  dis- 
charge, whether  on  habeas  curpus 
or  not,  must  bar  a  re-arrest  on  the 
same  matter,  (Jilz's  Case,  64  Mo. 
205;)  as  also  a  refusal  to  discharge 
may  prevent  the  issuance  of  another 
writ  of  habeas  corpus  in  the  case, 
except  on  subsequently  occurring 
events.  Pattison'sCase,56Miss.  161. 

(c)Booth's  Case,  3  Wis.  2. 

((?)Commonw.  v.  II;irrison,  11 3Iass. 
63;  Commonw.  v.  Cusliing,   Id.  67; 
McDonald's  Case,  1  Low.  Dec.  100 
(tf)Conimouw.  e.  Do\vnes,24  Pick. 


HABEAS    CORPUS.  559 

§  589.  Habeas  corpus  also  lies  to  recover  the  custody  of  a 
child.  If  the  petitioner,  however,  left  the  child  in  the  cus- 
tody of  the  respondent,  a  demand  and  refusal  are  indispensa- 
ble to  the  jurisdiction  of  the  case.(/) 

Whether  a  writ  of  habeas  corpus  will  issue  from  the  supreme 
court  to  a  person  within  the  state  to  bring  into  the  state  a 
minor  child,  under  guardianship  therein,  but  detained  in 
another  state,  is  doubtful;  as  in  Michigan,  where  the  question 
arose,  the  court  was  equally  divided  on  it,  thereby  rendering 
no  decision,  (f/) 

In  a  case  of  children  the  court  can  only  determine  the 
single  question,  whether  they  are  unlawfully  restrained  of 
liberty,  and  order  accordingly;  but  not  questions  of  guardian- 
ship, appointment  of  trustees,  disposition  of  property,  making 
provision  for  the  children's  support,  etG.(h) 

Where  a  guardian  makes  application  for  the  custody  of 
his  ward  he  must  make  his  letters  of  guardianship  a  part  of 
his  petition,  (t) 

In  Alabama  it  is  held  that,  on  habeas  corpus  sued  out  by 
the  mother,  a  probate  court  cannot  take  an  infant  from  the 
custody  of  the  father  and  give  it  to  her,  when  no  improper 
restraint  of  the  child  is  shown. (j)  And,  in  its  discretion,  the 
court  may  award  an  infant  to  the  father,  even  where  the 
child  is  of  an  age  to  choose. (/c) 

And  it  is  the  general  doctrine  that  the  father's  right  to  the 
custody  of  his  children  is  paramount  to  that  of  the  mother, 
although  he  may  by  misconduct  forfeit  that  right,  or  lose  it 
by  disqualification,  and  also  it  may  be  suspended  by  the  child's 
tender  age.  But  a  strong  case  must  exist  to  warrant  a  de- 
privation of  the  father's  right,  even  for  a  short  time ;  and, 
especially  where  the  wife  has  separated  from  her  husband 

(/)Spper  V.  Davis.  38  Ind.  272.  dependent,  is  entitled  to  tiie  custody 

(i7).Ia(;iiRon'.s  Case,  ir>  Mich.  417.  of    a    thirteen-year-old    son,   even 

(/i)Fergnson  «.  Ferguson,  36  Mo.  when  he  prefers  to  stay  with  a  kind 

197.  man,  of  good  character  and  means, 

(/jGregg  V.  Wynn,  22  Ind.  373.  to  whose  care  the  father  had  cou- 

(j/)Boaz's  Case,  31  Ala.  425.  signed  the  boy.    Moore  v.  Christian, 

In  Mississippi  it  is  held  that  a  56  j\Iiss.  408. 

widowed  mother,  though  poor  and  (/i;) Williams'  Case,  11  Rich.  459. 


b60  HABEAS    CORPUS. 

Tvithout  any  sufficient  excuse,  she  ought  not  to  have  the  cus- 
tody of  a  child  unless  the  child's  health  and  present  condi- 
tio:! imperatively  require  it.(/)  But,  if  the  father  be  dead, 
the.  mother  is  the  most  suitable  person  in  general  to  have  the 
custody  of  a  child;  yet  in  a  contest  between  the  surviv- 
ing mother  and  the  grandparents,  respecting  such  custody, 
it  is  held  that  the  interest  of  the  child  should  be  the  govern- 
ing motive  of  the  court,  and,  whenever  this  is  determined, 
judgment  should  be  pronounced  accordingly,  irrespective  of 
all  other  considerations.  (;//) 

And  if  the  father  is  living,  but  by  reason  of  immoral  or 
vicious  habits  he  is  unfit  to  have  the  custody  and  training 
of  his  child,  the  court  will  not  only  refuse  to  award  it  to  him, 
but  will  also  direct  it  to  be  taken  from  him  and  awarded  to 
the  mother ;(«)  and  sometimes,  in  rare  cases,  I  have  known 
a  child  to  be  taken  from  both  parents  and  entrusted  judi- 
ciously to  a  third  person,  where  both  were  unfit  to  care  for  it; 
and,  as  against  the  mother  of  a  bastard  child,  the  putative 
father  has  no  legal  right  to  its  custody.  The  mother,  as  the 
natural  guardian,  is  bound  for  its  maintenance,  and  is  en- 
titled, therefore,  to  control  it.(o) 

Where  a  wife  has  been  compelled  to  leave  her  husband  by 
his  ill-usage  and  goes  to  live  with  her  father,  taking  her  child 
along,  the  court  will  not  take  the  child  from  her  when  it  is 
well  cared  for,  and  is  not  likely  to  be  so  by  the  father,  since 

(/J People  «.  Humphreys,  24  Biirb.  means  of   habeas  corpus,  although 

.')2i.  he  had  repented  breaking  up  the 

While,   as   a   matter  of  abstract  family,  and  the  mother  had  refused 

law,  the  father,  as  head  of  the  fam-  his  proposals  to  cohabit  again,  and 

ily  atid  bound  to  provide  for  them,  declared  the  separation  should  be 

is   entitled   to   the  custody  of   the  perpetual.   While  the  children  could 

children,    yet    the    right    dep'.'nds  be  consulted,  if  of  the  age  of  dis- 

somewhat  on  the  circumstances  of  cretion,  j'et,  when  very  }'oung,  the 

the  case;  and  so,  where  a  mother  court  must  be  guided  by  a  consider- 

had  been  deserted  by  her  husband,  ation  of  their  best  interests,  in  view 

without  means  and  among  stran-  of  all  the  circumstances.     McShan 

gers,  and  had  found  with  her  father  v.  McShan,  56  Miss.  413. 
a   pleasant   and   permanent   home,  (rtt)People    v.  Wilcox,   22    Barb, 

where  her  two  infant  girls  were  well  178. 

cared  for,  it  was  held  that  the  father         (tj.) State  «.  Banks,  25  Ind.  495. 
could    not   claim   the   children   by  (o) People  ?'.  Kling,  6  Barb.  367. 


HABEAS    CORPUS.  5G1 

a  court  will  always,  in  its  discretion,  provide  for  the  interests 
of  the  child. (p) 

A  child  will  usually  be  allowed  to  have  an  election  where 
it  is  old  enough.  And  it  has  been  held  that  habeas  corpus  is 
not  the  proper  mode  for  a  guardian  to  obtain  the  custody  of 
a  ward  under  fourteen  years  of  age,  who  chooses  to  remain 
with  his  mother,  even  if  the  guardian's  right  to  the  person 
of  the  child  is  perfect,  and  can  be  enforced  against  all  oth- 
ers, (g)  And  where  a  female  child,  eleven  or  twelve  years 
old,  whose  father  was  dead,  was  committed  to  the  respondent, 
a  Shaker,  by  her  mother,  on  a  verbal  contract  for  her  sup- 
port and  education,  and  afterwards  a  guardian  was  appointed 
for  the  child,  who  claimed  her  custody,  the  court  refused  to 
determine  the  rights  of  the  guardian  and  the  mother,  respect- 
ively, on  habeas  corpus,  and  instead  thereof  gave  the  child  the 
choice  to  go  with  the  respondent,  to  whom  her  mother  had 
committed  her,  or  with  the  guardian. (?•)  And  where  a  child 
had  been  bound  as  an  apprentice  in  Canada,  and  the  master 
had  removed  with  her  into  the  United  States,  the  mother 
having  married  a  second  husband,  the  court  refused  to  de- 
liver her  to  the  mother,  as  she  expressed  her  inclination  to 
remain  with  the  master. (s)  Notwithstanding,  the  mother  does 
not  lose  the  right  of  custody  after  the  death  of  the  father,  by 
a  second  marriage.  Yet,  as  the  court  always  has  the  discre- 
tion to  determine,  under  all  the  circumstances,  what  is  for 
the  benefit  of  the  ciiild,  on  the  general  principle  that  the 
proper  office  of  a  writ  is  to  release  from  illegal  restraint, 
wliere  the  party  is  of  years  of  discretion  nothing  more  is  done 
than  to  discharge  him;  and,  if  otherwise,  the  court  or  judge 
must  decide  for  him,  and  make  an  order  to  place  him  in  the 
proper  custody,  when  this  has  been  judicially  determined.  (0 
So,  where  a  child  was  permitted  by  her  parents  to  reside 
with  others  for  a  certain  time,  at  the  expiration  of  which  these 

(j))Nickol8  V.  Giles,  2  Root,  461.  (.■<)Comiuonw.  ©.Hamilton,  6  Mass. 

((7)Stiite  V.  Chee.seman,  2  South,  273. 

(N.J.)  447.  (^Armstrong  v.  Stone,  9  Gratt. 

(r)Comniouw.    v.    Hammond,   10  102;  Kuat  v.  Vanvacter,  9  W.  Va. 

Pick.  274.  6U0. 
v.l— 36 


5(52  HABEAS    CORPUS. 

sought  to  detain  her,  and  she  desired  to  remain,  it  was  held 
that,  while  the  wishes  of  the  child  should  not  be  disregarded, 
yet  the  controlling  consideration  was  the  best  interests  of  the 
child,  with  a  due  regard  to  the  natural  rights  of  the  father. 
Shaw  V.  Nachtwey,  43  la.  653.  However,  a  father  may,  by 
Toluntary  contract,  release  his  parental  power  over  his  child 
to  another  person.  Bentley  v.  Terry,  59  Ga.  555.  In  mak- 
ing an  election  for  the  child  its  welfare  is  chiefly,  if  not 
exclusively,  sought,  so  that  parental  rights  are  no  further 
regarded  than  is  for  the  child's  good,  and  the  court  is  to 
do  what  it  supposes  the  child,  were  it  capable  of  proper  judg- 
ment, would  do  in  the  matter,  although  the  discretion  is  not 
to  be  arbitrarily  exercised,  nor  the  rights  of  the  parents  dis- 
regarded, (it)  The  court  will  interfere  so  far,  simply,  as  to 
permit  them  to  go  where  they  please  when  they  can  judge  for 
themselves,  and  their  wishes  will  lead  them  into  no  improper 
custody.  And  so,  where  the  contest  is  between  a  father  and 
a  master,  to  whom  he  has  bound  them  by  valid  indentures  as 
apprentices,  the  court  will  award  them  to  the  master,  if  they 
wish  to  remain  with  him ;  otherwise,  if  they  desire  to  go  with 
the  father  the  court  will  so  order,  (y) 

An  infant  daughter  was  recovered  on  habeas  corpus  by  a 
father  from  the  custody  of  the  respondent,  although  he  had 
verbally  committed  her  to  him  until  she  was  of  age,  and  the 
respondent  had  accordingly  adopted  her  to  be  brought  up  as 
his  own  child. («') 

Where  there  was  apparently  an  unjustifiable  separation  of 
husband  and  wife,  and  the  father  was  not  clearly  shown  to  be 
unfit  to  have  the  custodj'of  their  child,  on  habeas  corpus,  brought 
by  the  father  against  the  mother,  its  custody  was  awarded  to 
him.(>)  And  in  a  case  where  a  wife  had  voluntarily  deserted 
her  husband,  and,  returning  to  her  father,  withheld  one  of  the 
children  from  him,  with  her  father's  countenance  and  consent, 
it  was  held  that  her  father  was  a  proper  party  to  an  action 

(u)Feop\Q  V.  Kling,  6  Barb.  368,  (M)IState    «.    Baldwin,    1     Halst. 

36ft.  Chan.  4o4. 

{»)People  V.  Pillow,  1  Sand.  672.  (2;)Commonw.  c.  Briggs,  16  Pick. 

203 


HABEAS    CORPUS.  503 

by  habeas  corpus,  lie  being  a  party  to  the  wrong,  and  the  prin- 
ciple herein  being  that,  in  respect  to  a  civil  injury,  the  law 
regards  all  who  participate  in  it  and  promote  it  as  principal 
wrong-doers,  and  severally  responsible  to  the  party  injured  in 
respect  to  his  rights.  (^) 

An  action  at  law  otherwise  than  liaheas  corpus  does  not  lie 
where  a  child  is  illegally  restrained  of  its  liberty ;  but  a  father 
who  would  obtain  due  possession  of  his  child  must  do  so  by 
means  of  this  writ.(^)  But  the  original  jurisdiction  of  the 
supreme  court  of  the  United  States  does  not  extend  to  cases 
of  this  kind,  (a) 

§  590.  In  criminal  cases,  where  an  indictment  has  been 
found,  the  examination  cannot  go  behind  the  indictment,  but 
on  a  commitment  before  indictment  the  whole  question  of 
guilt  or  innocence  is  held  to  be  open  for  examination. (/>)  In 
Iowa  it  has  been  held  that  the  waicer  of  a  preliminary  exam- 
ination before  a  magistrate  does  not  deprive  an  accused  per- 
son of  the  right  to  show,  in  a  haheas  corpus  proceeding,  that 
there  is  not  sufficient  evidence  to  sustain  the  charge  against 
him.     Cowell  v.  Patteison,  46  la.  514. 

In  California  a  person  held  to  answer  upon  a  criminal 
charge  is  entitled  to  be  released,  if  not  indicted  by  the  grand 
jury  at  the  term  next  after  his  commitment,  unless  good  cause 
be  shown  for  further  detention.  But  this  question  of  good 
cause  is  almost  wholly  subject  to  the  discretion  of  the  court ; 
so  that  the  supreme  court  cannot  examine  the  sufficiency  or 
insufficiency  of  the  cause  on  luiheas  corpus. {c) 

A  prisoner  will  not  be  discharged  on  a  merely  voidable  sen- 
tence, but  only  on  one  absolutely  void,  and  the  test  is  usually 
that  an  illegality  which  renders  a  judgment  in  a  criminal 
case  void,  is  such  an  illegality  as  is  contrary  to  the  princi- 
ples of  law,  as  distinguished  from  rules  of  procedure ;((/)  as, 
for  instance,  where  a  sentence  is  so  uncertain  as  to  be  unin- 
telligible, it  is  absolutely  void.(c)     In  Missouri,  however,  no 

(2/)People  V.  Mercein,  5  Hill,  399.  (6)People «. Martin,  1  Park. Cr.lS?. 

(z)Dowling  V.  Todd,  26  Mo.  267.  (cjJ^uli's  Case,  42  Cal.  197. 

(a)Barry's  Case,  2  How.  (U.  b.)  ((/)Gibson's  Case,  31  Cal.  621, 

65.  ((;)ilobcrts'  Case,  9  Nov.  44. 


\ 


5G4  HABEAS    CORPUS. 

one  can  be  released  on  habeas  corpna  who  is  confined  under 
an  indictment.  If  the  indictment  is  defective,  or  if  it  has  not 
been  tried  in  the  time  required  by  law,  application  for  release 
must  be  made  to  the  court  where  the  matter  is  pending. (/) 

In  no  case,  under  a  regular  indictment,  can  a  prisoner  be 
released  on  habeas  corpus  by  merely  proving  his  innocence, 
but  he  must  abide  his  trial  by  jui-y.(g)  Nor  can  one  in  this 
way  take  advantage  of  an  error  in  granting  an  order  by  which 
one  is  held  in  custody, (7<)  for  no  writ  of  habeas  corpus  lies 
where  an  appeal  can  be  taken,  (i)  and  no  mere  errors,  therefore, 
committed  on  a  trial  will  be  regarded  on  a  hearing  under 
habeas  corpus. (j) 

However,  by  act  of  congress,  the  authority  of  judges  of  the 
United  States  courts  to  grant  the  writ  extends  to  cases  where 
a  prisoner  is  in  custody  under  a  valid  conviction  and  sentence, 
but  claims  his  release  on  the  ground  of  a  pardon.  (7j) 

And  a  habeas  corpus  is  always  available,  even  where  a  pris- 
oner is  imprisoned  under  a  sentence,  to  ascertain  whether  the 
sentence  is  void  or  not.{/)     See  §  594,  lufra. 

§  591.  It  is  not  needful  to  justify  a  writ  that  the  proceed- 
ings should  be  criminal,  but  in  arrest  under  civil  process  the 
legality  of  the  imprisonment  may  be  thus  inquired  into.(?7«) 
And  yet  there  seems  to  be  an  exception  to  this  in  the  case  of 

(/)Spracllend's  Case,  3S  Mo.  547.  (w)Gilliam  v.  McJiinkin,  2  S.  C. 

And  still  less  can  a  prisoner  claim  a  (N.  S.)  443. 

discharge  on  the  ground  of  not  hav-  As,  for  example,  where  n  pardoned 

ing  had  a  speedy  trial,  when  he  has  convict  is  imprisoned  for  costs,  ad- 

not  been  refused  a  trial  on  his  de-  judged  against  him,  (Gregor3''s  Case, 

mand  for  it.     Hernandez  «.  Btate,  4  5(j  Mi.ss.  164;)  or  one  in  jail,  under 

Tex.  Ct.  App.  421.1.  ra.  aa.  issued  on  a,  judr/mfintfouiided 

(,9) People    V.    McLeod,     1     Hill,  on  contract,  maj'  be  discharged  on 

392.  habeas  corpus,    (David  v.  Blundell, 

(AjHartmin's  Case,  44  Cal.  33.  39  N".   J.   612;)   or  one  arrested  in 

(^■)Platt  ».  Harrison,  6  Clarke,  79.  breach  of  primlege.     Thus,  in  ^lassa- 

(7)0'Connor's  Case,  6   Wis.  288;  chusetts,  where  a  non-resident  came 

Max's   Case,  44  Cal.   579;  Eaton's  into  the  state  voluntaril}-,  to  appear 

Case,  27  Mich.  1 ;  Winston's  Case,  before  a  legislative  committee  as  a 

9  Nev.  75,  and  cases  cited.  witness  to  testify  to  a  claim  he  held 

(^)Greathouse's  Case,  2  Abb.  (U.  against  the  state,  and  was  arrested 

S.)  383.  on  a  civil  execution,  he  was  released 

(?)People  V.   Ileffernan,  38  How.  on  habeas  corpus.     Thomson's  Case, 

Pr.  404.  122  Mass.  428. 


1 


HABEAS    CORPUS.  5(55 

a  bankrupt  arrested  on  an  execution  in  an  action  for  deceit, 
since  it  has  been  held  that  he  is  not  entitled  to  the  writ  on 
the  ground  that  the  action  is  founded  on  fraud  ;(n)  and  also 
that  a  debtor  arrested  on  civil  process,  at  the  time  his  petition 
in  bankruptcy  is  filed,  cannot  thereon  be  released  by  habeas 
cor  pus.  (o) 

§  592.  Where  one  is  committed  to  jail  merely  for  want  of 
bail,  but  can  be  admitted  to  bail  by  an  inferior  court,  a 
superior  court  will  not  issue  a  writ  of  habeas  corpus.{p) 

§  593.  That  the  wife  alone  was  arrested,  tried,  and  con- 
victed on  a  complaint  charging  her  and  her  husband  jointly 
with  selling  intoxicating  liquors  in  violation  of  law,  and  on  a 
warrant  issued  against  both,  is  not  sufiicient  ground  to  release 
her  from  commitment  on  a  writ.(g') 

§  594.  If  it  appear  that  sentence  was  passed  by  a  court  of 
competent  jurisdiction,  the  only  inquiry  on  a  writ  that  will 
then  remain  is  whetlier  the  sentence  is,  on  its  face,  certain 
and  definite  in  its  terms.  (7*)  It  is  not  necessary  that  the 
record  or  the  commitment  should  state  the  grounds  on  which 
the  charge  was  made,  and  the  court,  on  a  writ,  will  not  inquire 
into  those  grounds. (s) 

§  595.  In  Ehode  Island  it  is  held  that,  where  a  justice  of 
the  peace  committed  one  convicted  before  him  of  illegally 
selling  liquors,  who  had  prayed  for  an  appeal,  but  refused  to 
give  the  proper  recognizance  of  appeal,  "until  discharged  by 
due  order  of  law  the  court  will  not,  on  habeas  corpus,  discharge 
him,  but  will  consider  itself  bound  to  dispose  of  him  "as  law 
and  justice  shall  require;"  and,  therefore,  when  the  term  of 
the  appellate  court  is  still  future,  will  correct  the  error  of  the 
justice  by  recommitting  him,  by  a  proper  form  of  commit- 

(n.)Whitt'liouse's  Case,  1   Lowell,  such  release,  this  is  a  fact  to  be  in- 

(U.  S.)  421).  quired  of.     Alsberg's  Caso,   I'link. 

(«)Minon    v.    Vau   Nostrand,   Id.  Reg.  116. 

4i3'J.  (p)Belgard    v.    Morse,     2    Graj-, 

A   United  States  court  will   not  40G. 

release  b\'  habeas  corpus  a  bankrupt  ((7)Dougherty's  Case,  1  Williams, 

imprisoned  for  debt  under  a  state  (Vt.)  32!'). 

law,  if  tlie  debt  is  one  which  will  (/')Murray's  Case,  43  Cal.  4')5. 

not  l)e  affected  by  the  bankruptcy  (.v)Fcuple   v.    Gray,   4    Park.   Cr. 

ilischarge;  and,  on  application  for  616. 


566  HABEAS    COEPUS. 

ment,  so  that  he  may  gain  his  liberty,  on  the  statute  con- 
ditions as  to  recognizance  of  appeal,  (f) 

§  596.  A  person  who  has  been  conlined  as  a  lunatic,  with- 
out a  finding  of  lunacy  in  due  form  of  law,  will  be  released 
on  habeas  corpus,  unless,  in  extreme  cases,  where  the  public 
peace  or  morals,  or  the  interest  of  the  patient,  justifies  and 
requires  the  confinement — even  in  a  hospital. (u) 

§  597.  Usually,  a  writ  may  be  allowed  and  heard  in  vaca- 
tion, as  well  as  in  term  time.(r)  A  writ  may  issue  from  a 
court  and  be  made  returnable  before  a  single  judge  thereof 
in  vacation.  People  ex  rel.  v.  Booker,  51  Cal.  317.  And  the 
officer  who  has  made  arrest  under  process  is  a  proper  party 
to  the  proceedings. (»■)  And  an  appeal  may  lie,  also,  in  vaca- 
tion, and  without  filing  a  bond.(H-)  Unless  provided  by  stat- 
ute, expressly,  the  state  has  no  appeal  in  criminal  cases,  and, 
consequently,  none  from  an  order  rendered  in  a  criminal  case^ 
on  habeas  corpus.  In  Alabama  an  appeal  does  not  lie  from 
an  order  on  the  hearing  of  a  writ  of  Jiabeas  corpus  for  the  cus- 
tody of  a  child.  Matthews  v.  Hobbs,  51  Ala.  210.  In  Texas 
a  prisoner  cannot  appeal  from  an  order  dismissing  his  peti- 
tion, Coopivood's  Case,  44  Tex.  467,  In  Missouri,  and  in 
most  of  the  states,  a  discharge,  being  in  favor  of  personal  lib- 
erty, is  not  subject  to  appeal.  Jilz's  Case,  64  Mo.  205.  And 
the  parties  are  not  entitled  to  a  jury,  this  not  being  a  civil 
action  within  the  meaning  of  the  bill  of  rights. (.r) 

§  508.  It  is  a  constitutional  right  to  suspend  the  writ,  when 
the  public  safety  requires  it,  in  cases  of  rebellion  or  invasion. 
The  exercise  of  it  during  our  late  civil  war  gave  rise  to  much 
bitter  feeling  and  strife,  and  of  course  the  measure,  being  an 
extreme  one,  should  be  very  cautiously  adopted,  although  it 
should  be  vigorously  enforced  whenever,  in  the  discretion  of 
the  executive  and  legislative  departments,  no  doubt  exists  as 
to  the  crisis  imposing  the  necessity,  within  the  meaning  of 
the  constitution.  And  the  duty  never  devolves  on  subordinates. 
And  so,  where  an  order  was  issued  in  1862  from   the  war 

(^Sullivan's  Case,  5  U.  I.  27.  (?!)Bootli's  Case,  3  Wis.  1. 

(M)Cominonw.   v.    Kii-kbiidge,   2  (?c)Nicliols«.Cornelius,7Ind.  611. 

Brewst.  401,  420.  (;c)Baker  v.  Gordon,  23  Ind.  205. 


HABEAS    CORPUS.  567 

department,  professedly  "by  direction  of  the  United  States," 
directing  all  marshals  and  military  officers  and  police  author- 
ities to  arrest  persons  discouraging  enlistments  and  assum- 
ing to  suspend  the  writ  of  habeas  corpus  in  relation  to  all  per- 
sons arrested  for  disloyal  practices,  even  within  loyal  states, 
whereas  neither  the  president  nor  congress  had  as  yet  declared 
that  the  public  safety  required  the  writ  to  be  suspended  within 
the  limits  of  loyal  states,  the  order  was  held  void  by  the 
United  States  circuit  court,  and  the  consequences  of  allowing 
such  an  unauthorized  order  to  take  effect  are  thus  set  forth 
by  the  court :  "It  will  not  be  pretended  that  Vermont  is  not 
a  loyal  state.  She  has  been  and  is  among  the  first  and  most 
earnest  to  aid  and  sustain  the  government  in  putting  down 
the  causeless  and  atrocious  rebellion  which  is  now  distracting 
and  desolating  our  hitherto  happy  country.  She  has  furnished 
more  men  to  fight  the  battles  of  the  Union  than  any  other 
state  of  equal  population,  and  thousands  of  the  best  and 
bravest  of  her  sons  now  sleep  the  sleep  of  death  in  the  swamps 
and  on  the  battle  fields  of  Virginia,  Maryland,  and  Louisiana, 
The  petitioner  is  a  citizen  not  subject  to  military  law,  his 
age  being  over  sixty,  not  only  excusing  but  excluding  him 
from  military  service,  unless  by  that  order  every  citizen  is 
subjected  to  martial  law.  If  that  order  is  to  receive  the 
construction  the  marshal  claims  for  it,  then  more  than  thirty 
thousand  men  in  the  states  of  New  England  and  in  New  York 
— many  of  them  of  very  limited  intelligence  and  of  low  moral 
character — were  authorized  to  arrest  any  citizen  within  these 
states,  from  the  lowest  to  the  highest,  without  complaint, 
without  warrant,  and  without  even  informing  their  prisoner 
by  whom,  or  of  what,  he  was  accused.  This  order  assumes 
to  authorize  each  of  the  officers  or  agents  to  determine  who 
are  guilty  of  disloyal  practices — a  phrase  hitherto  unknown, 
and,  as  yet,  undefined  in  this  country — and  eacli  to  give  his 
own  construction  to  the  term;  and  if  any  one  of  these  in- 
quisitors pretends  to  think  that  a  citizen  has  done  or  said 
anything  which  he  chooses  to  consider  disloyal,  the  jjoor 
unfortunate — though  he  may  be  the  most  worthy,  loyal,  and 
patriotic  person  in  the    community — may  be    thrown    into 


508  HABEAS    CORPUS. 

prison  and  deprived  of  all  opportunity  of  being  heard  before 
a  court  or  a  jury  to  establish  his  innocence,  or  of  being  con- 
fronted with  the  witnesses  against  him,  or  of  even  ascertain- 
ing the  offence  with  which  he  is  charged.  Those  who  claim 
to  exercise  this  extraordinary  power  may  be  governed  by  whim 
or  caprice,  personal  ill-feeling,  political  or  religious  prejudice, 
the  hope  of  pecuniary  gain,  or  any  other  of  the  many  unworthy 
motives  which  influence  human  action  ;  and  yet  all  classes  of 
citizens,  from  the  day  laborer  in  the  field  to  the  senator  in 
the  legislative  halls  of  the  country,  are  subject  to  this  des- 
potic power :  none  is  exempt.  If  one  person  argues  that 
General  McClellan  is  the  most  suitable  person  to  command 
the  array,  and  another  insists  that  General  McClellan  ought 
to  be  removed  and  some  other  general  appointed,  both  persons 
are  liable  to  arrest,  according  to  the  peculiar  views  of  the 
different  agents  who  hear  or  are  informed  of  the  discussion, 
because  each  will  say  that  such  expression  of  opinion  tends 
to  discourage  enlistments  and  is  a  disloyal  practice.  One 
argues  that  the  Quakers  ought  to  be  subject  to  draft,  while 
another  insists  that  they  ought  not.  Yet  both  are  in  the 
same  danger.  One  claims  that  the  principles  and  policy 
advocated  by  the  New  York  Tribune  for  the  prosecution  of  the 
war  should  be  adopted  and  followed,  while  another  denies  it, 
and  avers  as  his  opinion  that  the  policy  indicated  by  the 
New  York  Herald  should  be  pursued.  Yet  both  are  liable  to 
arrest  by  a  partisan  of  the  other  for  discouraging  enlistments. 
These  illustrations  might  be  extended  ad  infinitum.'" (y) 

In  the  celebrated  Milligan  case,  the  United  States  supreme 
court  was  divided  five  to  four  on  the  questions  involved 
therein,  as  to  the  suspension  of  the  writ  in  the  state  of  In- 
diana, wherein  the  petitioner  was  convicted  by  a  military 
court  of  belonging  to,  and  taking  a  prominent  part  in,  a  for- 
midable secret  conspiracy  against  the  government. 

The  majority  of  the  court  held,  with  the  minority  also,  that 

"it  is  essential  to  the  safety  of  every  government  that  in  a 

great  crisisliKe  theonewe  havejust  passed  through  there  should 

be  a  power  somewhere  of  suspending  the  writ  of  habeas  corpus. 

(.VJFieWs  Case,  5  Blatch.  C.  C.  G7. 


HABEAS    CORPUS.  569 

In  every  war  there  are  men  of  previously  good  character 
wicked  enough  to  counsel  their  fellow  citizens  to  resist  the 
measures  deemed  necessary  hy  a  good  government  to  sustain 
its  just  authority  and  overthrow  its  enemies,  and  their  influ- 
ence may  lead  to  dangerous  combinations.  In  the  emergency 
of  the  times  an  immediate  public  investigation  according  to 
law  may  not  be  possible,  and  yet  the  peril  to  the  country  may 
be  too  imminent  to  suffer  such  persons  to  go  at  large.  Unques- 
tionably there  is,  then,  an  exigency  which  demands  that  the 
government,  if  it  should  see  fit,  in  the  exercise  of  proper  dis- 
cretion to  make  arrests,  should  not  be  required  to  j^roduce  the 
persons  arrested  in  answer  to  a  writ  of  habeas  corpus.  The 
constitution  goes  no  further. "(^) 

The  purport  of  the  decision  is  that  a  citizen  of  a  state 
where  the  courts  are  not  closed  by  war,  although  the  state  is 
within  an  assigned  military  district  and  the  citizen  is  charged 
with  secret  plottings  to  overthrow  the  government,  has  a  right 
to  the  writ  of  habeas  corpus,-  and  the  dangers  of  an  opposite 
theory  are  thus  set  forth.  The  proposition  is  this  :  "That  in  a 
time  of  war  the  commander  of  an  armed  force  (if  in  his  opin- 
ion the  exigencies  of  the  country  demand  it,  and  of  which  he 
is  to  judge)  has  the  power,  within  the  lines  of  his  military 
district,  to  suspend  all  civil  rights  and  their  remedies,  and 
subject  citizens  as  well  as  soldiers  to  the  rule  of  his  u-lU,  and 
in  the  exercise  of  his  lawful  authority  cannot  be  restrained 
except  by  his  superior  officer  or  the  president  of  the  United 
States.  If  this  position  is  sound  to  the  extent  claimed,  then, 
when  war  exists,  foreign  or  domestic,  and  the  country  is  sub- 
divided into  military  departments  for  mere  convenience,  the 
commander  of  one  of  them  can,  if  he  chooses,  within  his  lim- 
its, with  the  approval  of  the  executive,  substitute  military 
force  for  and  to  the  exclusion  of  the  laws,  and  punish  all 
persons  as  he  thinks  riglit  and  proper,  without  fixed  or  cer- 
tain rules.  *  *  *  This  nation,  as  experience  has  proved, 
cannot  always  remain  at  peace,  and  has  no  right  to  expect 
that  it  will  always  have  humane  and  wise  rulers,  sincerely 
attached  to  the  principles  of  the  constitution.     Wicked  men  , 

(2).Millig:urs  Case,  4  Wall.  125. 


570  HABEAS    CORPUS. 

ambitious  of  power,  with  hatred  of  liberty  and  contempt  of 
law,  may  fill  the  place  once  occupied  by  Washington  and 
Lincoln,  and  if  this  right  is  conceded,  and  the  calamities  of 
war  again  befall  us,  the  dangers  to  human  liberty  are  fright- 
ful to  contemplate. "(a) 

Chief  Justice  Chase,  with  Justices  Swayne,  "Wayne,  and 
Miller,  apprehensive  that  this  decision  tended  to  give  aid  and 
comfort  to  "fire  in  the  rear"  foes,  responded  in  a  separate 
dissenting  opinion:  "We  think  that  the  power  of  congress,  in 
such  times  and  such  localities,  to  authorize  trials  for  crimes 
against  the  security  and  safety  of  the  national  forces,  may  be 
derived  from  its  constitutional  authority  to  raise  and  sup- 
port armies,  and  to  declare  war,  if  not  from  its  constitutional 
authority  to  provide  for  governing  the  national  forces.  We 
have  no  apprehension  that  this  power,  under  an  American 
system  of  government,  in  which  all  official  authority  is  derived 
from  the  people,  and  exercised  under  direct  responsibility  to 
the  people,  is  more  likely  to  be  abused  than  the  power  to 
regulate  commerce,  or  the  power  to  borrow  money.  And  we 
are  unwilling  to  give  our  assent,  by  silence,  to  expressions  of 
opinion  which  seem  to  us  calculated,  though  not  intended,  to 
cripple  the  constitutional  powers  of  the  government,  and  to 
augment  the  public  dangers  in  times  of  invasion  or  rebell- 
ion. "(?0* 

(a) Id.  124,  125,  passm.  *See    my    late    work,    "Magna 

(b)ld.  142.  Charta,"  for  an  examination  of  this 

subject. 


JURISDICTION    OF    MILITARY    COURTS.  571 


CHAPTER  XX. 

JURISDICTION    OF    MILITARY    COURTS. 

j  539.  Jurisdiction,  ordinary  and  extraordinary. 

600.  liesistance  to  drafts  or  enrollment — enticing  away  out  of  the  state 

— enticing  a  minor  into  the  army. 

601.  Desertion. 

6)2.  Officer  whose  commission  is  revoked — nature  of  courts  martial. 

603.  Spies. 

604.  Mutiny  and  other  offences. 

605.  Distinction  of  offences  at  law  and  under  military  rule — distinction 

between  martial  and  military  law,  (in  foot  note.) 

§  599.  Courts  martial  may  be  regarded  as  possessing  an 
ordinary  and  extraordinary  jurisdiction — the  first  exercised 
over  soldiers  alone ;  the  second  exercised,  even  over  civilians, 
when  the  usual  courts  of  law  are  suspended  by  the  pressure 
of  war.  We  will  consider  the  second  branch  first  in  order, 
since  it  is  cognate  to  the  topic  with  which  the  last  chapter 
closed,  namely,  the  suspension  of  the  writ  of  liaheas  corpus. 

In  the  Milligan  case,  cited  in  the  last  chapter,  General  B.  F. 
Butler,  for  the  United  States,  made  a  powerful  argument,  in 
which  he  maintained  that  it  is  not  necessary  for  martial  law 
to  be  justifiable  that  the  courts  should  be  closed  for  all  pur- 
poses, but  closed  as  to  the  peculiar  questions  arising  in  con. 
nection  with  the  safety  of  the  country.  He  said :  "It  is  much 
insisted  on  that  the  determining  question  as  to  the  exercise  of 
martial  law  is  whether  the  civil  courts  are  in  session.  But 
civil  courts  were  in  session  in  this  city  (Washington)  during 
the  whole  of  the  rebellion,  and  yet  this  city  has  been  nearly 
the  whole  time  under  martial  law.  There  was  martial  law  in 
this  city  when,  in  1804,  the  rebel  chief,  Jubal  Early,  was  as- 
saulting it,  and  when,  it  this  court  had  been  sitting  here,  it 
would  have  been  disturbed  by  the  enemies'  cannon.    Yet  courts 


572  JURISDICTION    OF    MILITARY    COURTS. 

— ordinary  courts — were  in  session.  It  does  not  follow,  be- 
cause the  ordinal'}'  police  machinery  is  in  motion  for  the  repres- 
sion of  ordinary  crimes,  because  the  rights  l)etween  party  and 
party  are  determined  without  the  active  interference  of  the  mil- 
itary in  cases  where  their  safety  and  rights  are  not  involved, 
that  therefore  martial  law  must  have  lost  its  power.  This 
exercise  of  civil  power  is,  however,  wholly  permissive,  and  is 
subordinated  to  the  military  power;  and  whether  it  is  to  be 
exercised  or  not  is  a  matter  within  the  discretion  of  the  com- 
mander. That  is  laid  down  by  Wellington,  and  the  same  thing 
is  to  be  found  in  nearly  every  instance  of  the  exercise  of  mar- 
tial law.  Commanders  of  armies,  in  such  exercise,  have  been 
glad,  if  by  possibility  they  could  do  so,  to  have  the  courts 
carry  on  the  ordinary  operation  of  justice;  but  they  rarely 
permit  to  them  jurisdiction  over  crimes  affecting  the  well- 
being  of  the  army  or  the  safety  of  the  state.  The  determin- 
ing test  is,  in  the  phrase  of  the  old  law  books,  that  '  the  king's 
courts  are  open;"  but  the  king's  court — using  that  phrase  for 
the  highest  court  in  the  land — should  not  be  open  under  the 
permission  of  martial  law.  In  a  constitutional  government 
like  ours  the  supreme  court  should  sit  within  its  own  jurisdic- 
tion as  one  of  the  three  great  co-ordinate  powers  of  the  gov- 
ernment— supreme,  untrammelled,  uncontrolled,  unawed,  un- 
swayed— and  its  decrees  should  be  executed  by  its  own  high 
fiat.  The  supreme  court  has  no  superior  and  therefore  it  is 
beneath  the  ofiiee  of  a  judge  of  that  court,  inconsistent  with 
the  tribunal  whose  robes  he  wears,  that  he  should  sit  in  any 
district  of  country  where  martial  law  is  the  supreme  law  of 
the  state,  and  where  armed  guards  protect  public  tranquillity, 
where  the  bayonet  has  the  place  of  the  constable's  baton, 
where  the  press  is  restrained  by  military  power,  and  where  a 
general  order  constitutes  a  statute.  On  the  contrary,  we  sub- 
mit that  all  crimes  and  misdemeanors,  of  however  high  a 
character,  which  have  occurred  during  the  progress  and  as  a 
part  of  the  war,  however  great  the  criminals,  either  civil  or 
military,  should  be  tried  upon  the  scene  of  the  offence  and 
within  the  theatre  of  operations;  that  justice  should  be  meted 
out  in  such  cases  by  military  commissions,  through  the  strong 


JURISDICTION    OP    MILITARY    COURTS.  573 

arm  of  the  military  law  which  the  offenders  have  invoked, 
and  to  which  they  have  appealed  to  settled  their  rights.  We 
do  not  desire  to  exalt  the  martial  above  the  civil  law,  or 
to  substitute  the  necessarily  despotic  rule  of  the  one  for  the 
mild  and  healthy  restraints  of  the  other.  Far  otherwise.  We 
demand  only  that  when  the  law  is  silent;  when  justice  is  over- 
thrown; when  the  life  of  the  nation  is  threatened  by  foreign 
foes,  that  league  and  wait  and  watch  without  to  unite  with 
domestic  foes  within  who  had  seized  almost  half  the  territory 
and  more  than  half  of  the  resources  of  the  government  at  the 
beginning;  when  the  capital  is  imperilled;  when  the  traitor 
within  plots  to  bring  into  its  peaceful  communities  the 
braver  rebel  who  fights  without;  when  the  judge  is  deposed; 
when  the  juries  are  dispersed;  when  the  sheriff,  the  executive 
of&cer  of  the  law,  is  powerless;  when  the  bayonet  is  called  in 
as  the  final  arbiter ;  when,  on  its  armed  forces,  the  government 
must  rely  for  all  it  has  of  power,  authority,  and  dignity; 
when  the  citizen  has  to  look  to  the  same  source  for  every- 
thing he  has  of  right  in  the  present,  or  hope  in  the  future, — 
then  we  ask  that  martial  law  may  prevail,  so  that  the  civil 
law  may  again  live,  to  the  end  that  this  may  be  a  government 
of  laws  and  not  of  men." 

But  the  supreme  court  held  that  although  the  petitioner 
belonged  to  a  secret  organization  on  the  soil  of  Indiana,  in 
part,  and  extending  its  ramifications  throughout  the  north- 
western states,  with  the  design  of  wresting  the  north-west 
from  the  Union,  and  annexing  it  to  the  Southern  Confederacy, 
and  boasting  of  having  one  hundred  thousand  armed  men, 
sworn  in  a  secret  band,  and  actively  working  thus  to  dis- 
member the  Union,  the  ordinary  courts  were  comjjetent  to 
cope  with  this  formidable,  undermining  conspiracy ! !  Wherein 
was  this  different  from  the  open  operations  of  the  rebel  forces 
in  the  field,  except  that  it  was  more  dangerous  in  that  it  could 
more  defiantly  evade  the  power  of  the  government,  struggling 
with  all  its  energies  to  maintain  its  existence  ?  It  does  seem 
to  me  that  Mr.  Butler's  doctrine  is  the  only  reasonable  doc- 
trine; or,  at  least,  that  the  due  authority  of  martial  law  is 
not  80  much  a  matter  of  mere  locality  as  of  judicial  power; 


574  JUEISDICTION    OF    MILITARY    COURTS. 

and  not  only,  therefore,  where  this  is  wholly  oUjDerseded,  but 
so  far  as  it  is  superseded  by  overthrowing  peace  and  safety 
to  the  government  and  to  community,  and  is,  therefore,  pow- 
erless to  arrest  perilous  evils  immediately  threatening  to 
destroy  or  enervate  the  efforts  of  the  government  to  subdue  a 
terrible  rebellion,  martial  law  must  prevt^iljOr  else  we  are,  in. 
such  a  case,  helpless  in  the  extreme.  It  would  have  been  as 
impossible  to  try  those  one  hundred  thousand  secret  conspir- 
ators in  Indiana  and  the  north-west  by  the  ordinary  courts, 
as  to  try  the  whole  army  of  the  Southern  Confederacy  for 
treason.  And  even  the  court  define  the  matter  thus  :  "Mar- 
tial rule  can  never  exist  where  the  courts  are  open,  and  in  the 
pro]3er  and  unobstructed  exercise  of  their  jurisdiction."  Yes, 
unobstructed  exercise;  and,  also,  so  far  as  that  exercise  is 
unobstructed. 

But  how,  then,  with  a  secret  and  formidable  conspiracy  con- 
cerning which  the  exercise  of  jurisdiction  is  obstructed,  nay, 
wholly  powerless  ?  What,  then !  must  that  conspiracy  be  al- 
lowed to  ply  its  secret  arts  and  accomplish  its  designs  because  it 
is  shrewd  enough  to  organize  away  from  "the  locality  of  actual 
war,"  even  when  there  is  no  power  whatever  but  the  martial 
power  that  can  touch  it  at  all,  and  that,  too,  when  it  is  directly 
and  avowedly  aiming  to  subvert  the  government  ?  And  how 
tame  does  the  reasoning  of  the  majority  of  the  court  appear, 
when  in  the  very  midst  of  it  they  are  compelled  to  pause  and 
remark :  "It  is  proper  to  say,  although  Milligan's  trial  and 
conviction  by  a  military  commission  was  illegal,  yet,  if  guilty 
of  the  crimes  imputed  to  him,  and  his  guilt  had  been  ascer- 
tained by  an  established  court  and  an  impartial  jury,  he 
deserved  severe  punishment.  Open  resistance  to  the  meas- 
ures deemed  necessary  to  subdue  a  great  rebellion,  by  those 
who  enjo}^  the  protection  of  government  and  have  not  the 
excuse  even  of  prejudice  of  section  to  plead  in  their  favor,  is 
wicked.  But  that  resistance  becomes  an  enormous  crime 
when  it  assumes  the  form  of  a  secret  political  organization, 
armed  to  oppose  the  laws,  and  seeks  by  stealthy  means  to 
introduce  the  enemies  of  the  couritry  into  peaceful  commu- 
nities, and  there  to  light  the  torch  of  civil  war  and  thus  over- 


JUKISDICTION    OF    MILITARY    COURTS.  575 

throw  the  power  of  the  United  States.  Conspiracies  like  these, 
at  such  a  juncture,  are  extremely  perilous,  and  those  con- 
cerned in  them  are  dangerous  enemies  to  their  country,  and 
should  receive  the  heaviest  penalties  of  the  law  as  an  example 
te  deter  others  from  similar  criminal  conduct.  It  is  said  the 
severity  of  the  laws  caused  them ;  but  congress  was  obliged 
to  enact  severe  laws  to  meet  the.  crisis,  and  so  our  highest 
civil  duty  is  to  serve  our  country  when  in  danger.  The  late 
war  has  proved  that  vigorous  laws,  when  necessary,  will  be 
cheerfully  obeyed  by  a  patriotic  people  struggling  to  preserve 
the  rich  blessings  of  a  free  government." 

This  case  can  never  become  a  lasting  precedent,  partly  be- 
cause the  court  was  as  nearly  equally  divided  as  it  could  be, 
and  partly  because  the  dissenting  minority  of  the  court  has 
the  reason  of  the  case  so  completely  on  their  side.  Tlie  true 
doctrine  is  precisely  what  they  have  stated  it,  namely :  "Where 
peace  exists  the  laws  of  jjeace  must  prevail.  What  we  do 
maintain  is  that  when  the  nation  is  involved  in  war,  and 
some  portions  of  the  country  are  invaded,  and  all  are  exposed 
to  invasion,  it  is  within  the  power  of  congress  to  determine  in 
what  states  or  districts  such  great  and  imminent  public  dan- 
ger exists  as  justifies  the  organization  of  military  tribunals 
for  the  trial  of  crimes  and  offences  against  the  discipline  or 
security  of  the  army,  or  against  the  public  safety.  In  In- 
diana, for  example,  at  the  time  of  the  arrest  of  Milligan  and 
his  co-conspirators,  it  is  established  by  the  papers  in  the 
record  that  the  state  was  a  military  district;  was  the  theater 
of  military  operations;  had  been  actually  invaded,  and  was 
constantly  threatened  with  invasion.  It  appears,  also,  that  a 
powerful  secret  organization,  composed  of  citizens  and  others, 
existed  within  the  state,  under  military  organization,  con- 
spiring against  the  draft,  and  plotting  insurrection,  the  liber- 
ation of  prisoners  of  war  at  various  depots,  the  seizure  of 
the  state  and  national  arsenals,  armed  co-operation  with  the 
€nemy,  and  war  against  the  national  government.  We  can- 
not doubt  that  in  such  a  time  of  public  danger  congress  had 
power  under  the  constitution  to  provide  for  the  organization 
of  a  military  commission,  and  for  trial  by  that  commission  of 


570  JURISDICTION    OF    MILITARY    COURTS. 

persons  engaged  in  this  conspiracy.  The  fact  that  the  fed- 
eral courts  were  open  was  regarded  by  congress  as  a  suffi- 
cient reason  for  not  exercising  the  power,  but  that  fact  could 
not  deprive  congress  of  the  right  to  exercise  it.  Those  courts 
might  be  open  and  undisturbed  in  the  execution  of  their  func- 
tions, and  yet  wholly  incompetent  to  avert  threatened  danger, 
or  to  punish  with  adequate  promptitude  and  certainty  the 
guilty  conspirators.  In  Indiana  the  judges  and  officers  of  the 
courts  were  loyal  to  the  government,  but  it  might  have  been 
otherwise.  In  times  of  rebellion  and  civil  war  it  may  often 
happen,  indeed,  that  judges  and  marshals  will  be  in  active 
sympathy  with  the  rebels,  and  courts  their  most  efficient 
allies.  *  *  *  There  are,  under  the  constitution,  three 
kinds  of  military  jurisdiction :  one  to  be  exercised  both  in 
peace  and  war;  another  to  be  exercised,  in  time  of  foreign  war, 
without  the  boundaries  of  the  United  States;  or,  in  time  of 
rebellion  and  civil  war,  within  states  or  districts  occupied  bjr 
rebels  treated  as  belligerents  ;  and  the  tliird  to  be  exercised,  in 
time  of  invasion  or  insurrection,  within  the  limits  of  the 
United  States,  or  during  the  rebellion  within  the  limits  of 
states  maintaining  adhesion  to  the  national  government, 
when  the  public  danger  requires  its  exercise.  The  first  of  these 
may  be  called  jurisdiction  under  military  laic,  and  is  found  in 
acts  of  congress  prescribing  rules  and  articles  of  war,  or  other- 
wise providing  for  the  government  of  the  national  forces.  The 
second  may  be  distinguished  as  military  (jovc rnmcnt ,  supersed- 
ing, as  far  as  may  be  deemed  expedient,  the  ioc-al  law,  and  exer- 
cised by  the  military  commander,  under  the  direction  of  the 
president,  with  the  express  or  implied  sanction  of  congress; 
while  the  third  may  be  denominated  martial  law  proper,  and  is 
called  into  action  by  congress,  or  temporarily,  when  the  action 
of  congress  cannot  be  invited,  and  in  the  case  of  justifying  orex- 
cusing  peril,  by  the  j^resident,  in  times  of  insurrection  or  inva- 
sion, or  of  civil  or  foreign  war,  within  districts  or  localities 
where  ordinary  law  no  longer  adequately  secures  public  safety 
and  private  rights." 

§  600.  Under  the  acts  of  congress  resistance  to  an  enroll- 
ment, or  resistance  to  the  enforcement  of  a  draft,  and  espe* 


JURISDICTION    OF    MILITARY    COURTS.  577 

cially  where  the  homicide  of  the  enrolling  or  drafting  officer  or 
agent  is  involved  in  the  resistance,  is  cognizable  by  the  civil 
tribunals  only. (a)  Also,  in  Massachusetts,  soliciting  one  to 
leave  the  state  to  enlist  elsewhere;  and  the  indictment  is  main- 
tainable even  if  the  person  solicited  was  unfit  to  be  a  sol- 
dier. (6)     Also  enticing  away  a  minor  into  the  army.(c) 

§  601.  But  desertion  is  within  the  cognizance  of  a  court 
martial,  and  when  a  sentence  is  confirmed  it  is  altogether 
beyond  the  jurisdiction  or  inquiry  of  any  civil  tribunal  what- 
ever, provided  the  court  kept  within  the  limits  of  its  jurisdic- 
tion.(iZ) 

§  602.  An  officer  whose  commission  has  been  revoked  has 
a  right  to  demand  a  trial  by  a  court  martial  as  to  the  cause  of 
his  discharge. (e)  Such  a  court,  however,  is  always  extempore, 
and  has  but  a  special  as  well  as  limited  jurisdiction.  It  ia 
called  into  existence  for  sj^ecial  and  temporary  purposes,  and 
when  those  purposes  are  answered  it  dissolves  and  disappears. 
No  general  duty  or  authority  as  to  the  collection  of  fines  im- 
posed is  conferred  upon  the  president  of  the  court,  who  can 
exercise  only  such  power  as  is  given  him  specifically,  and 
within  the  time  prescribed. 

§  603.  While  a  spy  is  triable  only  by  a  military  court,  yet, 
if  peace  transj)ires  again  before  he  is  tried,  he  cannot  be  tried 
afterwards  by  any  court,  for  the  return  of  peace  takes  away 
such  jurisdiction. (/) 

§  604.  Mutiny  and  kindred  offences,  disrespect  or  disobe- 
dience to  an  officer,  and  insubordination  of  all  kinds,  are  cog- 
nizable by  military  tribunals.  And  in  regard  to  mutinous 
and  seditious  words  the  law  is  so  strict  that  even  if  the 
words  are  directed  against  an  order  unwarranted  by  military 
law  they  are  punishable ;  and  if  it  is  a  time  of  war  they  are 
punished  capitally.     An   English   authority  remarks:     "So 

(a)U.  S.  V.  Scott,  3  Wall.  646;  U.  (d)Dyne3  v.  Hoover,  20  How.  (U.  . 

S.  V.  Murpliy,  Id.  6r)2.  S.)  81. 

((5»)Commonw.  v.  Jacobs,  9  Allen,  (e)Goulfr3  Case,  5  It.  I.  r)98. 

274.  (/iMartin's    Case,  45  Barb.  142. 

(c)Buudy     «.     Dodson,    28     Ind.  Altbougb  he  may  be  delivered  to  a 

295.  civil  court  for  trial,  on  a  charge  ol 


V.  1—37 


arson,  or  other  civil  offence.     Id. 


578  JURISDICTION    OF    MILITARY    COURTS. 

large  is  the  scope  of  military  law,  even  in  ordinary  and  regu- 
lar military  law  in  times  of  peace  and  in  this  country,  that  it 
has  been  held,  and  by  a  court  of  error,  that  a  person  under 
military  law  may  be  liable  to  be  put  upon  his  trial  before  a 
court  martial  for  insubordinate  conduct,  or  mutinous  and 
seditious  words,  even  directed  against  an  order  made  without 
authority;  and  that,  even  although  on  that  ground  the  person  is 
acquitted,  he  has  no  legal  remedy,  because  the  seditious 
words  or  conduct  would  be  probable  ground  for  putting  him 
upon  his  trial." 

§  605.  "Under  martial  law  those  acts  or  offences  which, 
under  common  laWj  are  only  misdemeanors,  and  liable  to 
the  regular,  deliberate  legal  procedure — as,  for  instance,  se- 
ditious publications,  tending  to  stir  up  sedition  and  rebellion — 
become,  on  account  of  that  tendency,  grievous  and  danger- 
ous offences,  punishable,  according  to  military  usage,  by 
death;  because,  although  at  common  law,  in  time  of  peace, 
they  are  of  no  great  mischief,  the  result  being  trivial,  in 
times  of  danger  and  of  universal  insurrection  they  are  the 
most  formidable  and  fatal  offences." 

However,  there  is  a  distinction,  strictly  speaking,  between 
martial  and  military  law.  "The  former  depends  largely  upon 
the  discretion  of  the  chieftain  who  proclaims  it ;  the  latter 
is  as  clearly  defined  as  is  any  system  of  statute,  common,  or 
civil  law.  The  former  may  apply  both  to  soldiers  and  citi- 
zens ;  the  latter  applies  only  to  the  army.  In  time  of  war  all 
offences  committed  by  soldiers  are  cognizable  by  courts  and 
martial  or  military  commissions.  If  the  civil  courts,  in  time 
■of  war,  try  and  punish  such  offenders,  it  is. because  they  are 
permitted  to  do  so  as  a  matter  of  comity  or  expediency.  In 
time  of  peace  a  soldier  of  the  national  army  can  be  demanded 
b}',  and  surrendered  to,  the  civil  authorities,  to  be  tried  and 
punished  by  them,  only  when  he  is  charged  with  an  offence 
'such  as  is  punishable  by  the  known  laws  of  the  land;'  that 
is,  by  the  laws  of  the  United  States,  or  of  a  state  or  territory. 
A  city  by-law  or  ordinance  is  not,  in  this  sense,  'a  known  law 
of  the  land  ;'  but  a  soldier  who,  when  off  duty,  violates  it,  may 
be  arrested  in  the  act  and  restrained  by  the  civil  authorities, 


JURISDICTION    OF    MILITARY    COUETS.  579 

but  ma}^  not  be  tried  and  punished  by  them.  It  would  be 
their  duty  to  deliver  him,  on  demand,  to  the  military  authori- 
ties, and  the  duty  of  the  latter  to  enforce  the  law  military 
against  him.  If  the  civil  authorities  refuse  so  to  deliver  up 
the  soldier,  the  military  authorities  may  take  him  by  force; 
but  if,  instead  of  resorting  to  force,  the  military  authorities 
apply  to  a  federal  court  or  judge,  the  prisoner  must  be  dis- 
charged from  the  custody  of  the  city  authorities  by  the  writ 
of  ]i(il)eas  corjitLs."  Briglifs  Case,  1  Utah  T.  145.  In  time  of 
war  the  authority  of  military  trihunals  may,  in  all  things,  be 
exclusive.  Coleman  v.  Tennessee,  97  U.  S.  509.  However,  it 
is  held  that  the  adjudications  of  military  courts,  under  the 
reconstruction  laws,  are  only  decisive  of  the  cases,  and  are 
not  precedents.     Taylor  v.  Murphy,  50  Tex.  291. 


580  TAXATION. 


CHAPTEE  XXI. 

TAXATION. 

f  606.  Nature  of  the  tax-taking  power. 

607.  Compelling  the  levy  of  a  tax. 

608.  Mandamus  by  the  United  States  courts. 

609.  Compelling  the  extension  of  a  tax. 

610.  Enforcing  tax  against  delinquents. 

611.  Nature  of  proceedings  against  delinquents. 

612.  Right  of  court  to  make  rules. 
61.3.  Who  may  apply  for  judgment. 

614.  Terms  of  court. 

615.  Personal  judgments. 

616.  Injunction — when  it  will  lie — general  rule. 

617.  When  courts  will  not  grant  injunction. 

618.  Where  there  is  a  remedy  at  law. 

619.  One  who  seeks  equit)^  must  do  equity, 

620.  How  far  courts  will  grant  relief. 

621.  Parties  in  a  proceeding  to  enjoin. 

622.  Legal  remedies  available — actions  against  oflScers  and  municipal 

corporations — set-offs. 

623.  Protection  of  officers. 

624.  liecovering  back  taxes  involuntarily  paid. 

§  606.  The  legislative  power  of  taxation,  either  as  exer- 
cised directly  by  the  legislative  body  itself,  or  as  delegated  to 
municipalities  as  portions  of  the  body  politic,  does  not  ap- 
propriately fall  within  the  province  of  this  work  except  inci- 
dentally, our  subject  being  the  jurisdiction  of  courts,  superior 
and  inferior,  and  therefore  embracing  only  judicial  action  in 
some  mode  of  exercise.  Judicial  power  in  this  matter  is  lim- 
ited; and,  in  Illinois,  it  is  held  that  under  a  provision  of  the 
constitution  that  "the  general  assembly  shall  provide  such 
revenue  as  may  be  needed,  by  levying  a  tax,  by  valuation,  so 
that  every  person  and  corporation  shall  pay  a  tax  in  propor- 
tion to  the  value  of  his,  her,  or  its  property  ;  such  value  to  be 
ascertained  by  some  person  or  persons  to  be  elected  or  ap- 


TAXATION.  5b  1 

pointed  in  such  manner  as  the  general  assembly  shall  direct, 
and  not  otherwise."  The  courts  have  no  jurisdiction  to  re- 
lieve against  excessive  valuation ;  but  when  a  board  of  equal- 
ization, elected  or  appointed,  in  pursuance  of  such  constitu- 
tional provision,  have  fixed  a  valuation,  this  is  conclusive  and 
final,  and  the  courts  cannot  review  the  mode  of  reasoning, 
or  the  basis  on  which  the  valuation  rests — fraud  in  the  matter 
being  alone  cognizable. (a) 

However,  in  the  absence  of  a  constitutional  provision  thus 
withdrawing  the  matter  of  valuation  wholly  from  judicial 
consideration,  and  lodging  it  within  the  province  of  legisla- 
tive discretion,  exercised  through  a  designated  agency,  assess- 
ors may  be  regarded  as  acting  judicially,  in  a  degree,  so 
that  their  action  may  be  properly  regarded  as  within  the 
compass  of  the  present  treatise.  Thus,  in  New  York,  assess- 
ors are  held  to  be  quasi  judicial  officers,  their  assessments 
being  in  the  nature  of  judgments,  so  that  they  are  not  subject 
to  an  action  to  review,  modify,  or  reverse  their  proceedings, 
or  to  hold  them  to  a  personal  liability  when  acting  within 
their  jurisdiction,  (^)  although,  like  other  judges,  they  may, 
if  they  exceed  their  authority,  and  contravene  the  statute  un- 
der which  they  act,  be  made  responsible,  in  a  civil  action,  to 
injured  parties, (c)  for  they  are  subordinate  officers,  and  must 
confine  themselves  to  the  legitimate  use  of  their  power,  and 
they  cannot  acquire  jurisdiction  merely  by  determining  that 
they  have  it.  Thus,  it  is  the  province  of  the  legislature  alone 
to  determine  wliat  property  is  taxable,  or  7vho  are  taxable  in- 
Jiabitants,  and  their  decisions  on  such  points  are  void.(d)  But, 
with  regard  to  particular  persons,  or  particular  property, 
they  may  be  considered  as  acting  judicially  in  deciding 
whether  these  fall  within  the  legislative  rule  or  not.(c)  And 
so  they  act  judicially  in  deciding  upon  the  matter  of  exemp- 
tions in  behalf  of  particular  individuals;  and  may  reject  an 

(a)Insurance  Co.  v.  Pollak,  75  111.  (c)Clark  «.  Norton,  49  N.  Y.  243. 

2!)2.    And  so  in  Indiana.    Rhodes  v.  (d)Nat.  Bk.  of   Chemung  v.  El- 

Cushman,  45  Ind.  85 ;  K.  R.  v.  Mc-  mira,  53  N.  Y.  49. 

<)ueen,  49  Ind.  (54.  (e)Harhyte  v.  Shepherd,  35  JST.  Y. 

(hjR.  R.  V.  Nolan,  48  N.  Y.  514.  238. 


582  TAXATION. 

application  for  a  reduction  if  it  is  not  sustained  by  evidence 
satisfactory  to  them — unless,  indeed,  the  exemption  is  specif- 
icallij  pointed  out  by  statute,  in  which  case  there  is,  of  course, 
no  room  for  discretion ;(/)  but,  for  example,  in  deciding  a 
matter  of  personal  indebtedness,  for  exemption,  they  have 
plenary  power  to  weigh  the  merits  on  the  evidence. (</)  And 
as  to  domicile,  they  may  decide,  and  are  not  properly  liable 
for  any  error  in  the  conclusion.  Thus,  where  a  tax  pa_yer 
had  a  summer  residence  in  a  small  town,  and  a  winter  resi- 
dence in  the  city  of  Buffalo,  where  he  resided  from  autumn 
until  June,  remaining  with  his  family  at  the  country  resi- 
dence during  summer,  all  the  time  carrying  on  his  principal 
business  in  the  city,  to  which  he  attended  personallj',  going 
to  his  family  at  night  and  returning  to  the  city  mornings, 
and  the  assessors  of  the  town  where  he  had  his  summer  resi- 
dence, not  knowing  he  had  any  other  residence,  assessed  him 
for  personal  property,  and  the  assessment  was  collected,  it 
was  held  that  no  action  would  lie  thereon. (A) 

In  Massachusetts  it  is  held  that  where  tax  commissioners 
have  made  an  estimate  of  the  value  of  the  cajDital  stock  of  a 
corporation,  the  judgment  cannot  be  revised  or  modified  by 
any  other  tribunal. (i)  These  statements  may  suffice  for  the 
general  principle  involved,  and  we  will  leave  particular  apj)li- 
cations  thereof  to  be  presented  below,  in  the  present  chapter. 

§  607.  We  proceed,  now,  in  the  first  place,  to  notice  the 
power  of  courts  to  compel  the  levy  of  a  tax;  after  which  we 
will  treat  of  other  judicial  interferences  in  their  due  order. 
The  general  principle  is  that  mandamus  lies  to  compel  a  city, 
or  other  municipality,  to  levy  a  tax  to  pay  its  bond  debts 
which  have  passed  into  judgment;  and,  in  so  doing,  it  is  held 
that  in  order  to  do  justice  to  an  individual  relator  the  court 
may  issue  a  preliminary  order  separating  his  portion  of  the 
debt  from  that  held  by  the  others. (7)  Where  money  is  al- 
ready collected,  and  is  in  the  treasury,  available  for  the  pay- 

(  f  )Prosser  t).  Secor,  5  Barb.   COT.  (/jCommonwealth    v.    Cary    Im- 

(f/)Vose  V  Willard,  47  Barb.  321.  provement  Co.  98  Mass.  2i. 

(/<)l'ell  «.  Pierce,  4S  Barb.  51  ;  l)ut  {j)Ex   parte    Parsons,    1    Hugh, 

we  note  an  exception  to  this  below.  2S2. 


TAXATION.  583 

ment  of  a  judgment  against  a  city,  mandamus  will  lie  against 
the  treasurer. (/c)  A  mandamus  to  compel  a  levy  of  taxes 
must,  however,  conform  to  the  law  fixing  a  time  and  mode  for 
making  levies  and  collecting  taxes,  since  taxes  cannot  be  lev- 
ied or  collected  in  any  other  manner  than  specifically  pre- 
scribed by  statute. (Z)  And  maiidamus  does  not  lie  to  comj^el 
the  payment  of  an  unliquidated  claim,  (?«)  nor  to  compel  the 
allowance  of  a  claim,  although  the  higher  officers  may  be  thus 
required  to  consider  a  claim,  f?!)  as  in  the  case  of  any  other 
inferior  tribunal.  But  where  a  judgment  exists  against  a  city, 
it  is  the  duty  of  the  city  to  pay  it,  and  this  duty  can  be  en- 
forced by  mandamas,  and  at  the  instance  of  an  assignee  of  the 
judgment. (o)  And  so,  where  the  validity  and  amount  of 
coupons  annexed  to  bonds  issued  by  a  county  in  aid  of  a  rail- 
road corporation  are  definitely  fixed  by  the  statute  under 
which  the  bonds  were  issued,  so  that  their  presentment  for 
allowance  is  rendered  unnecessary  thereby,  a  mandamus  will 
lie  immediately  to  compel  the  levy  of  a  tax,(jo)  by  the  officers 
whose  duty  it  is,  and  on  whom  the  official  obligation  lies,  to 
provide  for  payment  of  the  bonded  indebtedness. (5) 

§  ()08.  Where  the  United  States  courts  issue  a  mandamus 
to  compel  the  levy  of  taxes  by  a  city  to  pay  a  decree  or 
judgment,  the  effect  of  the  writ  is  only  limited  by  the  state 
revenue  law;  and  it  may,  therefore,  require  the  levy  to  rest 
on  the  entire  taxable  property  of  the  city,  including  all  classes 
of  property  liable  to  general  taxation  by  the  state  law;  and 
if  a  city,  professedly,  in  obedience  to  a  mandamus,  levies  a 
special  tax,  but  leaves  out  a  part  of  the  taxable  property, — 
as,  for  instance,  merchants'  capital, — and  the  relator  finds 

(/,;)i5tate  «.  Calhoun,  27   La.  Aa.  (w)Peoplc    «.   Detroit,   34   Mich. 

107.  201. 

(?)Supervisor.s«.Kk'in,r)l  Miss. 808.  (w)t*ortwood    «.    Supervisors,    52 

And  so  it  lias  been  held  that  a.s  the  Miss.  523;  iState  v.  llaniilton  Co.  26 

United  States  courts  cannot  impart  Ohio  St.  3(54. 

a  taxing  power  to  a  municipal  cor-  (^y)Chicago     v.    Sansum,    87    111. 

poration,  they  cannot  compel  the  182. 

levy  of  a  tax  not  autliorized  by  state  (/))Shinborne  v.   Count}',  56  Ala. 

law.     Vance  v.  Little  Kock,  30  Ark.  183. 

436.  (r/)('ity    Council    of     Eufaula    v. 

Hickman,  57  Ala.  338. 


584  TAXATION. 

that  the  assessment  -will  not  be  sufficient,  he  may  apply  for 
a  further  peremptory  mandamus,  commanding  the  levy  to  be 
extended  over  the  omitted  class  of  property. (r)  And  the 
repeal  of  the  act,  under  which  the  creditor's  right  became 
vested,  will  not  affect  the  matter. (.s)  But  where  territory  is 
annexed  to  the  city  after  the  obligation  is  incurred,  and  a 
legislative  act  exempts  the  property  of  this  portion  from  all 
liability  for  previofis  debts,  a  m  indamus  must  give  effect  to 
this  exemption. (^)  Where  a  debt  may,  under  a  statute,  be 
regarded  as  primarily  payable  out  of  special  assessments, 
yet  these  being  insufficient,  and  the  bond  being  a  positive  and 
unconditional  promise  to  pay,  a  mandamus  will  lie  to  compel  a 
levy  on  all  the  taxable  property  of  the  municipality. (w)  But 
where  an  act  authorizing  a  county  to  subscribe  to  the  capital 
stock  of  a  railroad  company  limits  the  power  of  the  county 
to  provide  for  the  payment  of  the  bonds  to  an  annual  special 
tax,  a  mandamus  will  be  restricted  accordingly. (?;) 

§  609.  Not  only  may  a  court,  by  mandamus,  comj)el  the 
lev^dng  of  a  tax  to  pay  debts,  but  also  it  may,  likewise,  com- 
pel the  extension  of  a  tax  for  definite  purj)oses;  as,  for.  ex- 
ample, school  purposes.  And  it  has  been  held  that  where  a 
county  court,  by  an  order,  has  prohibited  the  county  clerk  to 
extend  a  school  tax  uj^on  the  tax  books,  according  to  an  esti- 
mate furnished  him  by  the  district  directors,  he  may  be 
required,  by  viandamiis,  to  do  so;  the  county  court  having  no 
control  orer  the  clerk  in  regard  to  the  assessment  and  exten- 
sion of  school  taxes. (/(') 

§  610.  The  aid  of  the  courts  must  be  called  in  when  neces- 
sary to  enforce  a  tax  assessment  against  delinquents.  And 
herein  the  steps  required  by  statute  must  be  strictly  pursued, 
in  order  that  the  proceedings  be  valid.  And  a  notice  is  im- 
peratively necessary;  so  that  a  legislature  itself  cannot  dis- 
pense with  this  in  some  form ;  because  the  constitutions  all 

(/■)Memphiso.  Brown,  97  U.S.  300.  (w)  United  States  v.  Fort  Scott,  99 

(sjMemphis  v.  United   States,  97      U.  S.  152. 
U.  S.  293.  (®) United  States  v.  Macon  Co.  99 

(/) United   States  v.  Memphis,  97      U.  S.  582. 
U.  S.  2S4.  (wjState  ex  rel.  v.  Byers  et  al.  67 

Mo.  706. 


TAXATION.  585 

require  "due  process  of  law."(a;)  Hence,  an  owner  may, 
■without  conferring  jurisdiction,  appear  for  the  special  pur- 
pose of  objecting  to  the  insufficiency  of  the  notice,  and  the 
consequent  want  of  jurisdiction. (^) 

Where  the  statutory  notice  is  in  fact  given,  as  required  by 
•^statute,  however,  a  mere  defect  in  the  affidavit  of  publication 
may  be  amendable.  (^)  But  nothing  can  be  allowed  to  dis- 
pense with  a  substantial  compliance  with  the  statute,  because 
the  proceedings  are  summary.  Thus,  since  it  is  the  report 
of  the  collector  that  gives  the  court  jurisdiction  to  act  on  an 
application  for  judgment  against  delinquent  lands,  the  law 
must  be  substantially  complied  with  by  such  report,  or  the 
court  will  be  without  authority. (a)  And  the  finding  of  a 
court,  as  to  its  jurisdiction,  is  held  not  conclusive. (/>)  In 
Nevada,  the  j^uUication  of  a  delinquent  list  is  directory  only, 
so  that  an  omission  in  this  respect  does  not  avail  a  delinquent 
in  a  tax  suit.(c)  "Where  a  law,  however,  requires  it  impera- 
tively, yet  the  omission  of  any  particular  tract  from  it  cannot 
be  allowed  to  vitiate  the  entire  assessment,  or  release  those 
whose  property  is  included  in  the  list.(c/) 

§  611.  But,  although  notice  cannot  be  dispensed  with,  yet 
the  proceedings  to  collect  delinquent  taxes  are  of  a  summary 
character,  as  above  stated,  so  that  a  trial  by  jury  cannot  be 
demanded, (f")  as  this  might  involve  injurious  dela3's. 

§  612.  In  such  proceedings  a  court  has  a  right,  as  in  other 
cases,  to  make  rules  and  orders  to  expedite  results,  and  may, 
therefore,  make  a  rule  allowing  a  reasonable  time  to  file  ob- 
jections to  the  application  for  judgment,  and  may,  on  non- 
compliance therewith,  refuse  to  consider  any  default. (^f) 

§  613.  Where  a  constitution  provides  that,  in  all  cases  of 

(j')Stewart   v.  Palmer,    74  N.    Y.  ((!/)Soiiichk;i  «.  Lowe,  74  111.  274. 

183.  (r)State  «.  C.  P.  R.  Co.  10  Nev.  7R. 

(.y)Ste:irns  Co.  v.  Smith,  25  Minn.  {d)C.  &  N.   W.  K.  Co.  v.  People 

131.  exrcl.  83  111.  4(57. 

(^)Mille  Lacs  Co.  v.  Morrison,  22  (s)New  Orleans  r.  Cas.sidy,  27  La. 

Minn.  178;  Dunham  v.  Chicago,  55  An.  704;  Koss  v.  Commissioners,  16 

111.  358.  Kan.  411. 

(a)People  ex  rel.  v.  Otis,  74  111.  (/)Hess  v.  People  ex  rel.  84  111. 

584.  247. 


580  TAXATION. 

sale  of  real  estate  ror  taxes,  returns  shall  be  made  to  a  gen- 
eral officer,  to  be  designated  by  the  legislature,  having  author- 
ity to  receive  state  and  county  taxes,  and  that  there  shall  be 
no  sale  of  such  real  estate  for  taxes  but  by  said  officer,  upon 
the  order  or  judgment  of  some  court  of  record,  such  pro- 
vision prohibits  a  court  from  rendering  judgment  for  the  sale 
of  real  estate  for  taxes  on  the  application  of  any  other  person 
than  the  officer  so  authorized  to  make  the  sale.(^) 

§  614,  And  it  seems  that,  as  to  terms  of  court,  a  notice  of 
application  given  by  such  officer  does  not  need  to  designate 
the  first  day  of  the  term  at  which  such  application  will  be 
made,(/i) 

§  615.  In  regard  to  the  judgment,  it  is  a  general  rule  that 
there  should  be  no  personal  jiuhfinent  for  taxes  levied  on  real 
estate,  but  that  the  judgment  should  be  against  the  property 
alone ;  and  this  applies  to  special  assessments  for  municipal 
improvements. (i)  In  regard  to  a  tax  levied  on  personal  prop- 
erty— as,  for  instance,  a  steam-boat — a  personal  judgment  may 
be  obtained,  even  where  the  law  provides  for  a  seizure  by  the 
collecting  officer,  and  a  sale  on  notice.  The  California  court 
say:  "We  can  jDcrceive  no  foundation  for  the  argument  that 
this  was  intended  to  be  the  exclusive  remedy.  Instead  of 
abridging  the  ordinary  remedy  by  suit  for  the  collection  of 
the  delinquent  tax,  it  was  clearly  intended  to  afford  a  new^ 
summary,  effectual,  and  additional  method  for  collecting  it, 
in  order  to  prevent  the  owner  from  evading  the  payment  of  it 
by  a  removal  of  the  property.  If  a  tax  has  been  duly  as- 
sessed, the  owner  of  the  property  becomes  personally  liable 
for  it,  and  the  remedy  is  not  confined  to  a  seizure  and  sale  of 
it,  nor  to  the  enforcement  of  a  lien  upon  it  by  action. "(j) 
The  obligation  creates  a  debt  in  the  sense  of  the  term  when 
applied  to  a  liability  for  the  payment  of  money  recoverable 
by  the  proper  municipality.  (^■)     And  the  United  States  may 

(f/)nills  V.  Chicago,  60  111.  86.  .'JO  Cal.  115;  People  «.  Seymour,  16 

(A) Parks  v.  Miller,  48  111.  360.  Cal.  332. 

(OSrassheim   v.  Jerman,   56   Mo.  (/iDubuqne   v.  11.  R.  39   la.   61; 

105;   Carliii  ».  Cavender,  56Mo.  2S6.  Dugan   v.  Mayor,  1  Gil.  &  .Johns. 

(j)City  of   Oakland   v.  Whipple,  49!);    Mayor  v.   Uoward,   6  Har.  &- 


TAXATION:  587 

be  a  party  plaintiff  in  the  collection  of  a  tax  by  action  at  law 
or  suit  in  equity;  and  in  such  a  case  no  set-off,  however  just, 
can  be  allowed.  (Z) 

In  Michigan  the  general  rule  is  modified,  so  that  no  suit 
for  j)ersonal  property  taxes  can  be  maintained,  except  where 
the  taxes  have  been  returned  unpaid,  for  want  of  property  to 
levy  on,  as  may  be  the  case  where  the  property  is  disposed  of 
after  the  assessment,  or  where  the  assessment  rests  on  a 
business  or  occupation.  The  court  saj:  "The  tax  roll  is 
itself  as  complete  and  adequate  as  an  execution  on  a  judg- 
ment would  be  if  there  are  goods  and  chattels  within  the 
treasurer's  jurisdiction.  It  would  be  a  foolish  ceremony  to 
sue  for  land  taxes  when  the  land  itself  can  be  sold  to  pay 
them.  But  where  personal  taxes  are  unpaid,  the  debtor  may 
have  property  subject  to  execution  not  open  to  seizure  and 
sale  by  the  treasurer,  and  a  suit  in  such  case  is  proper  and 
necessary  to  secure  payment.  The  statutory  provisions  are 
based  on  plain  policy,  and  preclude  the  idea  of  suit  in  any 
case  not  named. "(w)  In  that  state,  as  also  in  others,  real 
estate  taxes  may  be  collected  by  distress  on  goods  and  chat- 
tels. In  case  of  suit  there  is  no  trial  by  jury,  nor  change  of 
venue  allowed,  the  proceeding  being,  as  before  remarked, 
summary,  (w) 

§  616.  We  now  take  up  the  consideration  of  proceedings 
adverse  to  the  assessment  or  collection  of  taxes.  And  first 
we  will  treat  of  injunction,  as  the  prevalent  mode  of  resist- 
ance; and  then  of  other  particulars,  such  as  the  responsi- 
bility of  the  officers,  and  the  like. 

There  will  be  no  judicial  interference,  on  the  ground  of  mere 
irregularities,  or  even  hardships;  since  imperfections  are 
unavoidable  in  the  almost  infinite  range  of  subjects  to  which 
the  taxing  system  must  necessarily  apply.  The  United  States, 
supreme  court  thus  state  the  general  rule  of  judicial  inter- 

Johns.  S'^S  ;  Gordon's  I'A-'r  «.  Mayor,  (/)  United  States  v.  Pacifie  It.  Co. 

r,  Gil.  23]  ;   Pvvan  v.  Gallatin  Co.  14  4  Dill.  71. 

111.  78  ;   Dnnlap  ».  (Jallatin  Co.  15  (mjStale}'  v.  Columl)Us,  36  Mich. 

111.  7;  Mayor,  etc. ,  v.  McKec,  2  Yerg.  38. 

1G7;  Slate  «.  Poultuer,  16  Cal.  TjH;  (/t)Mi\   o.  People  ex  rel.   86   111. 

Ins.  Co.  V.  Portland,  12  B.  Mon.  77.  312. 


58S  TAXATION. 

ference :  "We  do  not  propose  to  lay  down,  in  these  cases,  any 
absolute  limitation  of  the  powers  of  a  court  of  equity  in 
restraining  the  collection  of  illegal  taxes;  but  we  may  say 
that,  in  addition  to  illegality,  hardship  or  irregularity,  the 
case  must  be  brought  within  some  of  the  recognized  founda- 
tions of  equitable  jurisdiction,  and  that  mere  errors  or  excess 
in  valuation,  or  hardship,  or  injustice  of  the  law,  or  any 
grievance  which  can  be  remedied  by  a  suit  at  law  either  before 
or  after  the  payment  of  taxes,  will  not  justify  a  court  of  equity 
to  interpose  by  injunction  to  stay  collection  of  a  tax.  One 
of  the  reasons  why  a  court  should  not  thus  interfere,  as  it 
would  in  any  transactions  between  individuals,  is  that  it  has 
no  power  to  apportion  the  tax,  or  to  make  a  new  assessment, 
or  to  direct  another  to  be  made  by  the  proper  ofJicers  of  the 
state.  These  officers,  and  the  manner  in  which  they  shall 
exercise  their  functions,  are  wholly  beyond  the  power  of  the 
court  when  so  acting.  The  levy  of  taxes  is  not  a  judicial 
function.  Its  exercise,  by  the  constitutions  of  all  the  states 
and  by  the  theory  of  our  English  origin,  is  exclusively  legis- 
lative. Heine  v.  The  Levee  Commissioners,  19  Wall.  660. 
A  court  of  equity  is,  therefore,  hampered  in  the  exercise  of 
its  jurisdiction  by  the  necessity  of  enjoining  the  tax  com- 
plained of,  in  whole  or  in  part,  without  any  power  of  doing 
complete  justice  by  making,  or  causing  to  be  made,  a  new 
assessment  on  any  principle  it  may  decide  to  be  the  right  one. 
In  this  manner  it  may,  by  enjoining  the  levy,  enable  the  com- 
plainant to  escape  wholly  the  tax  for  the  period  of  time  com- 
plained of,  though  it  be  obvious  that  he  ought  to  pay  a  tax  if 
imposed  in  the  proper  manner.  These  reasons,  and  the 
weight  of  authority  by  which  they  are  supported,  must  always 
incline  the  court  to  require  a  clear  case  for  equitable  relief 
before  it  will  sustain  an  injunction  against  the  collection  of  a 
tax  which  is  part  of  the  revenue  of  a  state.  Whether  the 
same  rigid  rule  should  be  applied  to  taxes  levied  by  counties, 
towns,  and  cities,  we  need  not  here  inquire:  but  there  are 
both  reason  and  authority  for  holding  that  the  control  of  the 
courts,  in  the  exercise  of  power  over  private  property  by  these 
corporations,  is  more  necessary,  and  is    unaccompanied    by 


TAXATION.  581) 

many  of  the  evils  that  belong  to  it  when  affecting  the  revenue 
of  the  state, "(o) 

The  particular  point  of  inquiry,  in  this  connection,  is 
whether  the  "substantial  justice"  of  the  tax  has  been  affected 
or  not  by  an  irregularity  complained  oi.{p)  It  is  not  the 
business  of  a  court  of  equity  to  further  any  scheme  for  the 
mere  evasion  of  a  tax,  even  if  such  scheme  is  technically 
legal ;  as,  for  example,  where,  for  the  purpose  of  evading  the 
payment  of  a  tax  on  money  on  deposit,  which  the  state  law 
required  to  l)e  listed  for  taxation  March  1st  in  each  year,  the 
depositor  withdrew  it  from  the  bank  February  28th,  converted 
it  into  United  States  bonds,  and  deposited  these  to  his  general 
credit  March  3d,  a  decree  dismissing  a  bill  in  equity,  which  he 
lirought  to  restrain  the  collection  of  a  tax  levied  thereon,  was 
lield  to  be  correct,  notwithstanding  such  securities  were  exempt 
from  taxation,  since  a  court  of  equity  will  not  employ  its 
extraordinary  powers  to  promote  such  a  scheme,  evidently 
intended  to  evade  the  party's  proportionate  share  of  the  bur- 
den of  taxation. (f^)  Where  one  appeals  to  a  court  of  equity 
he  must  rely  upon  some  substantial  equity,  and  cannot  avail 
himself  of  naked  irregularities,  or  the  neglect  of  mere  forms, 
to  shield  himself  from  a  past  liability. (r) 

§  617.  A  court  of  equity  will  not  interfere  by  injunction  to, 
restrain  an  entire  tax,  because,  in  determining  the  aggregate 
value,  certain  exempt  property  is  included  as  a  factor,  not- 

(o)8tate  Railroad  Tax  Cases,  92  U.  JNIcGowaa,  59  Ga.  805  ;  Du  Page  Co. 

S.    614;    Hanuewinkle   «.    George-  ».  Jenks,  65  111.  277. 

town,  15  Wall.  548;  Dowv.  Chica-  (j^)Mart  v.  Smith,  44  Wis.  214; 

go,  11  Wall.  lOS;  Tappan  «.  Bank,  someliines  tliis  is  expressly  pn-vid- 

1'.)   Wall.  504;  Weber  v.   Ronhard,  ed  by  statute;  Chiiiiquy  «.  People, 

73  Pa.  St.  373;  Commonwealth  «.  78  111.  572;  Beers  v.  People,  83  111. 

Savings  Bank,  5  Allen,  247;  Allen  488;   and  no  forced   or   unnatural 

V.    Drew,   44    Vt.    174;    Mooers  v.  construction  will  be  placed  on  the 

Smedley,  6  Johns.  Ch.  27;  Me.sscrt  Avords  of  a  law  in  order  to  defeat 

«.  Su|)ervisors,  50  Barb.  190;  Dodd  the  ta.\iiig  power  ;  Fi.sher  «.  People, 

t>.  Hartford,  26  Conn.  239  ;  Green  v.  84  111.  491. 

Mimford,  5  R.  I.  478 ;   I'l'iiinegan  v.  {7)Mit(;hell  «.  Commissioners,  91 

Fernandina,   15  Fla.  379 ;   Burke  «.  U.   S.   206;    Ogden   v.    VVuliier,  59 

Bpeer,     59     Ga.    353 ;      Decker    v.  I  nd.  460. 

(r)Jones  v.  Sumner,  27  Fnd.  511. 


590  TAXATION. 

withstanding  jurisdiction  might  be  entertained  to  enjoin  the 
collection  of  a  tax  wholly  against  exempt  property — the  error, 
in  such  a  case,  being  considered  a  mere  irregularity, (s)  Nor 
will  jurisdiction  be  taken  merely  to  test  whether  a  complain- 
ant is  in  fact  liable  to  the  tax  asssesed  or  not.(f)  Nor  to  de- 
cide whether  a  tax  is  technically  levied  for  a  corporate  purpose 
or  not.(H)  Nor  in  order  to  decree  the  sale  of  land  on  which 
taxes  are  assessed,  even  in  a  suit  for  injunction  brought  by 
the  owner. (f)  Nor  can  an  injunction  be  granted  in  an  action 
at  law  ;  as,  for  example,  in  a  replevin  suit.(?r)  Nor  can  a  tax 
paj'er  enjoin  the  collection  of  a  county  tax  on  the  ground 
that  he  had  paid  in  former  years  into  the  county  treasury 
taxes  illegally  assessed  and  collected. (x)  Nor  in  order  to 
revise  a  decision  of  the  tax  officers  on  the  matter  of  an  ex- 
€mption.(t/)  Nor  in  order  to  prevent  the  sale  of  personal 
property,  even  the  property  of  a  railroad  corporation;  since 
this  would  be  merely  interfering  to  prevent  a  trespass.  (^)  Nor 
can  one  appeal  to  equity  on  the  ground  of  an  error  which  is 
harmless  or  beneficial  to  hiln.  Thus,  where  one  complained 
of  the  violation  of  a  constitutional  rule  of  uniformity,  but  it 
appeared  that  his  taxes  would  have  been  more  if  the  rule  had 
been  observed,  his  bill  was  dismissed. («)  And  so,  if  there  is 
a  defect  in  the  proceedings,  which,  by  the  strict  rules  of  law, 
would  render  them  invalid,  but  the  amount  is  in  justice  no 
more  than  the  complainant  ought  to  pay,  equity  will  not  re- 
lieve him.(/))  And  an  individual  seeking  relief,  either  on  his 
own  behalf,  or  on  behalf  of  himself  and  others,  must  be  able 
to  show  a  personal  grievance,  distinct  from  those  of  the  public 
at  large,  in  order  to  give  him  a  standing  in  court,  (c)  and  he 
cannot  be  allowed  to  complain  merely  that  other  property, 

(«)Huck  V.  K.  R.  86  111.  360.  (i^)Clintou  School  District's  Ap- 

(r)Mutnal  Loan,  etc., t).  McGowan,  peal,  .50  Pa.  St.  315. 

59  Ga.  811..  (2)C.  &  N.  K.  R.  Co.  v.  Ft.  How- 

(w)Taylor  v.  Thompson,  42  111.  9.  ard,  21  Wis.  45. 

(wjWeber  t).  San  Francisco,  1  Cal.  («)Miltimore    v.    Supervisors,    15 

45G.  Wis.  9. 

(?o)Spencer  «.  Wheaton,  14  la.  38.  (5)Dean  e.  Gleason,  l(i  Wis.  19; 

(.c)Fremont  v.   Mariposa   Co.    11  and  cases  cited. 

Cal.  361.  (<-)Miller  v.  Grandy,  13  lUcl.  541. 


TAXATION.  591 

alike  subject  to  taxation,  has  been  omitted,  in  order  to  restrain 
taxes  properly  assessed  upon  Inm.(ti) 

Again,  it  has  been  held  that  a  bill  will  not  lie  to  restrain  a 
misappropriation  in  the  disbursement  of  a  tax(e)  raised  for 
general  purposes ;(/')  although  it  is  otherwise  as  to  a  special 
2)urpose ;  as,  for  instance,  a  donation  to  a  railroad  corporation 
without  legislative  authority,  which  may  be  enjoined  at  the 
instance  of  any  tax  payer,  it  seems.  (^)  Although  it  is  a  ground 
for  the  interference  of  equity  to  enjoin  a  sale  of  land  for  taxes 
that  the  tax  is  illegal  and  the  sale  will  produce  a  cloud  on  the 
title  of  the  owner,  yet  when  it  is  manifest  that  the  sale  will 
be  void  on  the  face  of  the  proceedings  on  which  a  purchaser 
must  necessarily  rely  for  a  jJfima  facie  evidence  of  title,  it  is 
held  that  equity  will  not  interfere,  since  a  proceeding  which 
appears  on  insjjection  to  be  void  cannot  create  a  cloud, (/t) 
Equity  will  not  enjoin  a  tax  because  it  is  levied  by  a  de  facto 
officer  merely,  although  it  may  do  so  where  the  levy  is  made 
without  any  pretence  of  authority  or  color  of  office,  to  which 
the  right  of  levying  taxes  is  an  incident. (i) 

§  618.  If  there  is  a  complete  and  adequate  remedy  at  law, 
■equity  will  refuse  to  interfere — this  being,  as  previously  ex- 
plained, a  fundamental  principle  of  equity  jurisdiction. 
Thus,  where  a  board  has  been  provided,  wliose  duty  it  is  to 
hear  objections,  and  who  can  be  compelled  by  vtandamiis  to 
exercise  their  discretion  herein,  an  objector  must  resort  to  the 
board,  and  to  the  right  to  sue  out  a  vuduIudius,  before  he  can 
assert  any  equitable  claims  in  the  matter  ;(j)  and,  indeed, 
the  findings  of  such  board  are  usually  final,  except  in  way  of 
appeal.  And  the  right  of  ahatinu  taxes  may  be  vested  in  a 
■court, (k)  and  then  will  not  be  interfered  with  by  equity.  In 
Massachusetts  the  right  to  recover  back  illegal  taxes  is  re- 

(rf)Muscatinc  v.  K.  R.  1  Dill.  .OliG.  (r/)ITarnoy  v.  R.  II.  32  Ind.  244. 

(e)Kilbouriie  v.  St.  .lolin,  5!»  N.  V.  (/t)liiu;knall  «.  Story,  36  Cal.  70. 

11;  ChnrcJi,  Ch.  .1.  and  KnpaUo,  ,].,  (?;)Mnnson  v.  Minor,  22  111.  595; 

dissenting;    Truesdiill's  Appeal,   58  Staekle  o.  Sil.sbce,  41  Mich.  615. 
Pa.  St.  149.  ( ;)P(!()plo  v.  Otsego  Co.  51  N.  Y. 

(/)Coinmissioiu'rs   v.    Brown,  28  4ltl. 
Ind.  128;   Commissioners  «.  McCar-  (ZijCoclicco  Manuf'g  Co.  v.  Slraf- 

ty,  27  Ind.  475.  .ford,  51  K.  11.  455. 


592  TAXATION. 

garded  as  an  adequate  remedy  at  law,  so  that  the  collection 
of  taxes  cannot  at  all  be  restrained  in  that  state,  (i)  And  so, 
formerly  at  least,  in  New  York.(m)  But  in  most  of  the  states, 
as  I  judge,  a  bill  in  equity  will  lie  to  restrain  the  collection 
of  an  illegal  tax,(/i)  in  the  absence  of  an  adequate  remedy  at 
law.  Where  such  remedy  exists  it  must  he  employed.  Thus^ 
if  one  would  restrain  the  sale  of  personal  property  seized  for 
tax  assessed  on  lands,  he  must  show  that  the  property  pos. 
sesses  a  peculiar  value,  not  capable  of  compensation  in  dam- 
ages, (o)  A  merely  illegal  and  void  assessment,  sought  to  be 
enforced  against  personalty,  presents  no  ground  for  equita- 
ble interference,  where  neither  irreparable  mischief  nor  a 
multiplicity  of  suits  may  be  apprehended,  (ju)  Where  the 
proper  forum  for  correcting  errors  is  provided  by  a  revenue 
law,  equity  will  not  undertake  the  work  of  revision.  (5)  It 
will  never  interfere  without  imperative  reasons.  And  where 
the  complaint  was  that  a  large  sum  was  irregularly  and  ille- 
gally, and  without  notice,  added  to  the  complainant's  list,  as 
money  at  interest,  the  bill  was  dismissed  because  he  could  rec- 
tify it  at  law.(r)  When  there  is  a  remedy  by  appeal,  or  by 
final  reference  to  officers  appointed  for  the  purpose,  equity 
jurisdiction  is  thereby  excluded. (.s)  To  justify  it,  also,  ther& 
must  be  some  act  done  in  violation  of  a  complainant's  legal 
rights,  or  threatening  him  with  irreparable  injury. (/)  If 
trespass  will  lie  for  the  act,  this  prevents  equitable  interfer- 
ence, (m)  Where  a  legal  method  of  correction  exists,  a  tax: 
payer  cannot  loiter  until  it  is  too  late  to  avail  himself  of  it> 
and  then  come  into  equity  for  relief  ;(t')  for  equity  will  not 
aid  one  in  default,  (if?)     But  it  is,  of  course,  requisite  that  he 

(OLoud  V.  Charlestown,  99  Mass.  (<7)Brooks   v.    Sbeltou,   47    Miss. 

208;  Brewer  «.  Springfield,  97  Muss.  243 

154.  (/-jAruoldo.Middletown.SO  Conn. 

(m)Wilson  v.  The  Mayor,  4  E.  D.  401. 

Smith    675.  (s)Stewart   e.  Maple,  70   Pa.    St. 

(n)Zorger  v.  Rapids Tp.  36  la.  176.  221. 

((Allenry  v.  Gregory,  29  Mich.  68 ;  (/)Judd  v.  Fox  Lake,  28  Wis.  583. 

Quiuuey   v.    Stockbridge,   33  Wis.  (;/)McPike  «.  Pew,  48  Mo.  525. 

505.  (v)State  V.  Ins.    Co.    19   La.  An. 

(p)Mayor,  etc. ,  v.  Baldwin,  57  Ala.  474. 

62.  (MJHarrison  v.  Vines,  46  Tex.  15. 


TAXATION.  593 

have  due  notice. (.:c)  A  bill  must  contain  some  peculiar  ground 
of  ('(]uitabl6  jurisdiction  in  tax  matters  as  well  as  in  others. (//) 

§  (ill).  The  equitable  maxim  likewise  prevails  that  he  who 
seeks  equity  must  do  equity;  that  is  to  say,  where  a  detiuite 
portion  of  a  tax  is  legal,  and  the  remainder  illegal,  the  legal 
part  must  first  be  paid  before  equity  will  interfere  as  to  the 
remainder. (5;)  And  so  a  bill  for  relief  must  give  such  facts 
as  will  enable  a  court  to  separate  the  legal  from  the  illegal 
portion,  and  must  offer  to  pay  the  part  the  complainant  does 
not  dispute  ;(a)  as,  for  example,  if  the  complaint  is  that  the 
authorities  have  charged  more  interest  than  the  law  allows 
on  unpaid  taxes,  the  legal  rate  must  be  tendered. (^)  And 
thus  as  to  any  portion  of  the  principal  assessment,  (c)  And 
the  principle  extends  to  a  proceeding  instituted  to  set  aside  a 
tax  sale  of  land,  and  enjoin  the  purchaser  from  attaining  a 
tax  deed,  where  there  are  irregularities  which  would  avoid  the 
deed,  but  do  not  enter  into  the  groundwork  of  the  assess- 
ment.(t?)  And  it  is  held,  in  Wisconsin,  that  where  the  court, 
in  an  action  to  avoid  taxes,  is  of  opinion  that  the  tax  is  viti- 
ated by  defects  in  the  groundwork  of  the  assessment,  the 
court  may  stay  proceedings  until  a  re-assessment  shall  be 
made ;  and  may  thereon  require  the  plaintiff,  as  a  condition 
of  relief,  to  pay  the  just  amount,  to  be  ascertained  by  re-as- 
sessment.(e) 

A  rather  novel  application  of  the  general  principle  of  doing 
equity  occurred  in  an  Indiana  case.  The  stockholder  of  a 
defunct  bank,  on  which  taxes  had  been  levied,  replevied  prop- 
erty which  had  been  seized  by  the  treasurer,  and  it  was  ad- 
judged that  the  property  belonged  to  him,  except  an  iron 
safe,  which  was  the  proj)erty  of  the  bank.     He  gave  a  deliv- 

{x)]i.  It.  V.  Russell,  8  Kan.  .558.  Mich,  llti ;  Conway  v.  Waverly  Tp. 

(2/)Hoagland  v.  Delaware  Tp.  17  15  Mich  262. 

N.  J.  Eq.  1U6  ;  Price  v.  Kramer,  4  (i)8mith   v.  Auditor  General,  20 

Co\.  546;   Woodward  v.  Ellsworth,  Mich.  398;    Iloseberry  v.  Huff,  27 

Id.  580.  Ind.  14. 

(2)(;ity  of  Lawrence  v.  Kiliam,  11  (cjCJonnors   v.   Detroit,  41    Mich. 

Kan.  409.  128. 

(rt)Pahner    v.    Napoleon    Tp.    16  (d) Hart  «.  Smith,  44  Wis.  218. 
(e)PIumer  v.  Marathon  Co.  46  Wis.  164. 
V.l— 38 


504  TAXATION. 

ery  bond  for  the  safe,  and  brought  suit  for  an  injunction  as 
to  the  whole  of  the  property.  It  was  held  that,  as  he  did  not 
offer  in  his  bill  to  return  the  safe,  nor  to  pay  its  value  to  the 
treasurer  on  account  of  the  taxes  of  the  bank,  he  had  no 
equitable  standing  in  court.  Said  the  court :  "He  has  no 
standing  in  court  to  recover  from  the  treasurer  the  property 
of  the  bank.  He  does  not  offer  to  do  equity,  and  a  court  of 
equity  will  not  lend  him  its  aid  to  prevent  the  property  of  the 
bank  from  being  subjected  to  the  equitable  lien  for  taxes. "(/') 

A  bill,  however,  may  designate  speciall}^  the  amount  of  the 
illegal  taxes  complained  of;  and,  in  such  case,  only  this  is 
before  the  court,  and  an  offer  to  pay  the  undisputed  portion 
ma}^  be  thus  rendered  superfluous.  (^) 

In  Arkansas  it  is  held  that  an  excessive  levy  vitiates  the 
whole  tax,  and  a  court  cannot  apportion  on  a  bill  to  enjoin, 
and  treat  as  valid  so  much  as  is  not  in  excess  of  the  author- 
ized rate.(/0  I  think  this  is  not  the  general  rule,  and.  in 
Illinois,  it  has  been  held  that  where  a  bill  is  brought  to  enjoin 
the  collection  of  a  tax  levied  to  pay  county  orders  issued  for 
military  bounties,  a  part  of  which  are  unauthorized  and  a 
part  warranted  by  law,  the  court  should  ascertain  the  pro- 
portion which  is  authorized,  and  reduce  the  levy  accord- 
ingly, (i)  This  amounts  to  nothing  more  than  restraining  the 
tax  so  far  as  the  illegality  extends,  and  no  further.  However, 
it  may  be  different  where,  as  in  the  Arkansas  case,  the  rate 
per  cent,  is  beyond  what  the  law  allows  to  be  levied. 

>j  620.  We  now  consider  positively  what  a  court  of  equity 
will  do,  as  we  have  been  noticing  negatively  what  such  a 
court  irill  not  do,  in  the  way  of  restraining  a  tax.  And,  first, 
where  municipal  assessments  are  unconstitutional  the^^  may 
be  set  aside,  as  also  the  sales  of  land  under  them;(;)  and  in 
order  to  ascertain  the  fact  of  unconstitutionality  the  court  will 
look  behind  the  printed  statutes  to  the  legislative  records  to 
see  whether  the  forms  of  the  constitution  were  observed  in  tlie 

(/)Ewin.i,r  «..  Hiilzner,  24Ind.  410.  (/OWortlien   «.  Bad^ett,  32  Aik. 

(//)C;i(MiK-nt  V.   Everett,  29  Mich.      406. 
20.  (i)Birscoe  «.  Allison,  43  111.  2'.'1. 

(./)McClane  v.  Newark,  31  N.  J.  Eq.  472. 


TAXATION.  595 

passage  of  an  act.(A-)  Also,  equity  will  interfere  m  cases  of 
total  illegality — that  is,  where  a  tax  is  assessed  without  any 
authority  of  law.(/)  The  general  rule  is  that  interference 
may  be  invoked  where  the  property  upon  which  a  tax  is  levied 
is  exempt,  or  where  the  tax  is  levied  in  a  case  not  authorized 
hy  law;  or  in  the  absence  of  all  legal  power  de  jure  or  de  facto; 
or  where  the  persons  imposing  a  tax  have  no  power  under 
the  hiw  to  levy  such  a  tax.(»j)  As  to  exemptions,  the  husi- 
hCHHof  a  national  hank  is  an  example.  A  tax  levied  on  it  will 
be  enjoined  because,  as  it  is  conducted  under  United  States 
law,  it  is  not  subject  to  municipal  taxation. (?0  And  so  as  to 
the  Htock  of  such  a  bank,  wdietlier  included  in  an  aggregate 
of  a  tax  payer's  propertj^  or  listed  eo  nomine.  The  reason 
given  is  that  a  state  tax  on  the  loans  of  the  national  govern- 
mtnt  would  be  a  restriction  imposed  on  the  constitutional 
power  of  the  United  States  to  borrow  money;  and  if  there 
were  such  a  right  it  wx)uld  be  unlimited  in  its  nature,  and 
might  be  employed  so  as  to  defeat  the  entire  povver  of  the 
^'overnraent.(o) 

If  a  tax  levy  is  inherenthj  unjust  orinequifaJile,  it  may  be  en- 
joined, in  Wisconsin ;  and  a  statute  attemjjting  to  deprive  a 
tax  payer  of  the  remedy  by  injunction,  in  a  case  where  the 
taxes  are  inherently  unjust  or  inequitable,  it  is  held  would  be 
unconstitutional  and  void.(j9)  Where  a  statute  requires  the 
assessment  of  lots  belonging  to  different  owners,  separately, 
equity  will  interfere  in  a  case  where  two  lots,  owned  by  dif- 
ferent persons,  are  valued  together;  and  the  plaintiff  does 
not  need  to  offer  to  pay  any  portion  of  the  tax  assessed  on 
such  valuation. (V/)  It  is  a  ground  for  relief  that  irreparable 
injury  may  result;  but  a  tax  on  a  husiiiess  cannot  be  enjoined 

(/L)WorUicn    v.  Badt-ett,  32  Ark.  Du  Page  Co.  «.  Jenks,  6")  111.277;  and 

4!Mi.  see  section  616,  supra. 

(ODi-ake   v.  Phillips,  40   111.  388.  («)Mac.onp.  First  Nat.  Hk.  59  Ga. 

Inwa  seems  to  be  an  exception,  since  648. 

ii    is  the  doctrine  there  that  mere  (<>)ljank   of    Comnierce    v.    New 

illegality    will     sutlice.      liood    v.  York,  2  Black,  620. 

.Mitchell  Co.  .30  la.  446.  (;))AYhittaker    v.    .Janesville,    33 

(///jMuiLsen  v.  ."Miller,  60  111.  380;  AVjs.  77. 

(q)lhid. 


51H3  TAXATION. 

on  the  ground  of  possible  inability  of  the  parties  to  pay  it, 
wiiereby  it  may  work  irreparable  injury  by  breaking  up  their 
business — this  being  a  mere  incidental  consequence  that  may 
occur  under  any  tax.(r) 

In  Connecticut,  notwithstanding  the  general  rule  above 
stated,  that  equity  will  not  interfere  in  a  case  of  mere  mis- 
appropriation of  a  tax,  unless  it  be  to  a  spechd  illegal  pur- 
pose, it  is  held  that  where  money  is  misappropriated,  even 
by  a  vote  of  the  town  in  a  town  meeting,  equit}'  will  interfere 
at  the  instance  of  a  tax  jjaj-er ;  as,  for  example,  where  money 
is  voted  to  aid  the  government  in  obtaining  troops,  in  the  way 
of  paying  military  bounties. (-s-"^  Where  a  purpose,  however, 
is  in  itself  fraudulent,  and  even  where  the  fraud  is  mani- 
fested merely  by  a  grossly  excessive  valuation,  a  court  may 
interpose,!  I?)  under  the  general  rule  of  equity  jurisdiction  in 
matters  of  direct  fraud.  And  so,  if  there  is  an  arbitrary 
injustice  done,  by  increasing  an  assessment  on  a  tax  payer 
without  notice  to  him,  and  of  which  he  has  no  knowledge 
until  it  is  too  late  to  take  legal  steps  to  correct  it,  he  may 
have  relief  in  equity  ;(</)  although  a  mere  excessive  valua- 
tion, by  persons  appointed  under  a  constitutional  provision 
to  make  such  valuation,  will  not  constitute  a  ground  of  appli- 
cation.*>•)  And  so,  in  cases  of  oppression,  the  remedy  by 
injunction  lies ;  as,  for  example,  where  an  ordinance  required 
return  and  payment  to  be  made  within  an  hour  after  the  tax 
should  accrue,  and,  in  case  of  default,  doul)led  the  tax,  and 
directed  execution  to  issue,  and  denounced  a  penalty  for 
non-payment,  the  tyrants  were  held  amenable  to  equity.(/r) 

In  Wisconsin  it  has  been  held  that  a  dcjicicncfj  of  valua- 
tion, made  under  a  statute  requiring  taxes  to  be  levied  on  a 
full  valuation,  is  a  ground  of  injunction,  and  is  not  obviated 
by  the  testimony  of  the  assessor,  that,  had  the  property  been 

(/■)  Vounglilood      V.     Sexton,      32  ('<)(Meglioi-u  «.  Post k'waitt'. -l.'!  ill. 

Mifl).  407.     See  section  (516,  aupra.  42w. 

(s)Webstev     »'.     Harwinton,     32  (»;)Insuranoe  C'o.  v.  Pollalc.  7.')  111. 

Conn.  131.  292. 

(<)Pacific  Hotel  Co.  ».  Lieb,  83  ill.  (/r)Gould  v.  Atlanta,  .5;')  Ga.  G78. 

(i03. 


TAXATION.  5'.>7 

thrown  on  the  market  on  the  day  of  the  assessment,  he 
believed  it  would  not  have  brought  more  than  the  assessed 
values,  so  that  from  that  stand-point  he  had  assessed  tiie 
l)roperty  at  its  fall  value. (j?)  In  Kansas  it  has  l)een  held 
that  where  the  owner  of  a  tract  held  it  liable  to  assessment 
as  a  single  tract  of  so  many  acres,  and  portions  of  it  were 
assessed  as  town  h)ts,  he  could  enjoin  the  collection  of  the 
taxes  on  such  assessment. (*/)  In  Missouri  relief  will  be 
afforded  in  equity,  where,  through  ignorance  of  law,  partly 
caused  by  the  action  of  a  court,  the  time  of  redemption  from 
a  tax  sale  has  expired.  (^) 

As  to  interference  in  matters  of  tax  levy  upon  personal 
property,  the  rule  is  that  it  will  be  denied.  But  there  are 
some  exceptional  cases  where  the  rule  is  departed  from. 
Thus,  in  a  case  where  a  tax  collector  placed  a  tax  Ji.  fa.  in  a 
sherilf's  hands,  with  instructions  to  satisfy  it  out  of  the  first 
money  that  should  come  into  his  hands  from  the  sale  of  the 
defendant's  property  under  an  execution  he  then  held,  and  the 
sheriff  sold  defendant's  property  for  more  than  enough  to  pay 
off  the  tax  fi.  fa.  under  other  executions,  and  application  was 
made  to  the  tax  collector  to  allow  the  money  to  be  paid  over  to 
such  executions,  which  he  refused,  and  thereon  the  sheriff,  with- 
out consent,  paid  over  the  money  to  the  levying  executions,  and 
then  levied  the  tax  fi.  fa.,  without  further  orders,  on  other 
property  of  the  defendant,  it  was  held  that  a  creditor  of  the 
defendant,  who  had  attatdied  the  property  last  levied  on, 
could  enjoin  its  sale  on  the  tax  fi.  fa.,  by  alleging  the  insolv- 
ency of  the  debtor,  and  his  inevitable  loss  if  the  sheriff  was 
allowed  to  proceed,  (a)  This  rests  upon  the  ground  of  irre- 
parable injury,  evidently, 

A  tar  sale  of  lands  will  be  enjoined  where  it  would  be  void, 
find  the  validity  does  not  appear  on  the  face  of  the  proceed- 
ings; since,  in  such  a  case,  the  deed  would  be  a  cloud  on  the 
title. (/^)     And  so  equity  will  set  aside  such  sale  when  it  is 

(.c)Salsclu;ider  ».  Fort  ilowiird,  45  (;)Il!iriiey     v.    ("Iiailcs,    4")     Mo. 

Wis.  521.  157. 

(.y)Steb)jliis   v.  ('hallis.s,   15    Kan.  (ajIJcatie  v.  Hrnwn,  40  Ga.  458. 

:,:,.  (J)Hurr  V.  Hunt,  is  Cal  WO'i. 


508  TAXATION. 

illegal,  essentially.  In  a  case  where  the  entire  quarter  sec- 
tion was  assessed,  and  the  owner  of  three  forties  of  it  offered 
t )  pay  the  taxes  on  his  three  forties,  and  demanded  a  receipt 
therefor,  and  the  collector  refused  this,  but  gave  a  receipt  for 
the  taxes  on  the  undivided  three-fourths  of  the  quarter, 
which  was  received  under  protest,  and  afterwards  judgment 
was  rendered  against  the  undivided  one-fourth  of  the  tract, 
and  it  was  sold  to  the  state,  it-  was  held  the  tax  payer  could 
have  the  sale  set  aside  as  to  the  three  forties  he  claimed  as 
owner,  since  the  judgment  should  have  been  against  the  forty 
as  an  entire'cy,  instead  of  against  the  one  undivided  fourth 
part  of  the  quarter  section. (c)  And  so  a  sale  will  be  set 
aside,  although  leaving  the  lands  under  the  lien  of  the  assess- 
ment, where  a  statute  requires  a  demand  on  the  owner  for 
personal  propert}'  for  payment  of  the  taxes  on  the  lauds,  of 
which  personal  proj^erty,  subject  to  levy  and  sale,  the  tax 
jiiiyer  has  sufficient.  But,  in  granting  relief  by  vacating  the 
sale,  the  owner  will  be  required  to  pay  an  amount  sufficient 
to  redeem. ( (7) 

A  deed  will  be  restrained  where  it  will  be  a  cloud,  on  condi- 
tion of  tiie  payment  of  the  legal  tax,  if  the  land  has  been 
sold  on  a  void  assessment.!  cj  And  the  owner  may  be  allowed 
a  reasonable  time  to  pay  the  taxes  properly  due,  where  the 
sale  is  illegal,  l)nt  the  levy  legal. (/j 

v^  G21.  As  to  the  parties  in  an  action  for  enjoining  taxes,  an 
undisputed  owner  of  land  may  maintain  such  an  action  with 
regard  to  taxes  levied  on  the  land;  l)ut  if  there  is  an  adverse 
claimant  he  must  be  brought  in  also  as  a  party.(_9)  Some- 
times a  city  may  be  a  necessary  party  defendant,  as  where  a 
tix  is  levied  for  special  improvements ;(/<)  and  even  a  countv 
court,  as  where  the  court  has  issued  railroad  bonds,  and  a  tax 
is  levied  to  pa}'  the  interest,  which  is  resisted  on  an  alleged  ille- 
gality of  the  issue. (f)    Of  course,  the  same  rules  are  applied  to- 

(r)L:i\vi-c'nce  v.  Miller,  f^tj  111.  502.  (/)Pctitt  v.  Black,  S  Nub.  J2. 

((Z)M(;Wliiiiney  v.  Brinker,  (U  hid.  (5f)Litchtic]d  v.  Polk  Co.  18  la.  70. 

■M'K  (/i)Gilmore  «.  Fox,  10  Kan.  oOO. 

(t)h:ciii;el'<'.  Outagamie  Co.  2G  Wis.  (i()State     v.    Sanderson,     .l-i    ;Mo. 

70.  ^  203. 


TAXATION.  5  it  9 

corporations,  such  as  railroad  companies,  as  are  applied  to 
individuals,  (j)  In  a  suit  by  a  railroad  corporation  tlie  various 
counties  along  its  line  ^may  be  joined  as  party  defendants, 
where  the  questions  involved  are  common  to  all,  and  tlie 
counties  are  agencies  of  the  state  as  to  that  portion  of  tlie 
taxes  payable  into  the  state  treasury.  (/>;) 

A  township  cannot  maintain  an  action  to  enjoin  the  col- 
lection of  taxes  levied  on  the  taxable  property  of  individuals. 
Such  an  action  can  only  be  maintained  by  the  owners  tb em- 
selves.  (Z)  Neither  can  one  municipality  restrain  by  injunc- 
tion the  collection  of  a  tax  levied  by  another  municipality. 
The  tax  payers  themselves  must  be  the  complainants. (w) 
And  so  parties  severally  taxed,  and  having  no  common  inter- 
est except  in  the  question  of  law  involved,  cannot  unite  on 
the  ground  of  preventing  a  multiplicity  of  suits  when  their 
cases  severally  present  no  ground  for  equitable  interference. («) 
And  where  a  tax,  considered  in  the  abstract,  is  legal  and 
valid,  but,  when  applied  to  the  separate  property  of  two  or 
more  persons,  becomes,  as  to  such  property,  illegal  and 
invalid,  while  each  may  have  his  separate  action  for  an  in- 
junction, they  cannot  jcn?  in  an  application. (o)  Where  there 
is  a  common  interest,  however,  there  may  be  a  joint  action; 
or,  sometimes,  one  tax  payer  may  bring  an  action  on  behalf 
of  himself  and  others  in  like  condition ;(/))  as,  for  example, 
where  a  whole  assessment  for  school  purposes  is  unauthor- 
ized. (</) 

The  rule,  however,  does  not  prevail  in  Illinois,  where  it  is 
lield  that  no  tax  payer  has  the  right  to  enjoin  the  collection  of 
similar  taxes  imjjosed  on  other  persons  for  whom  he  is  not  an 
agent  or  trustee;  since  each  individual's  tax  is  a  separate 
and  distinct  burden,  and  it  would  l)e  inexpedient  to  ahow 
one  person,  at  will,  to  sue  in  behalf  of  himself  and  others; 

{j)\i.     H.     V.     Kli/.;il)ctlit(i\vn,     \:1  (//)  Y'ouiiiililood />. Sexton,  :i2  .Mich. 

But^h.  283.  4(17. 

(/)U.  K.  V.  McSlianc,  .']  Dill.  304.  («)II<i(lson  »).  .Mcliison  Co.  liIKaii. 

(OCcMitorTp.  ».  Hunt,  Ui  Kan.  430.  140. 

(w)Nun(la   V.    Chry.stal    Lake,  7i)  (p)\Amdon  »'.  Wiliuiiis-ion,  7s  N. 

111.  311.  C.  10!». 

(^)Williams  v.  rcinii}-,  25  la.  43G. 


600  TAXATION. 

although  vavJons  persons,  having  a  like  interest,  may  properly 
join  as  parties  to  the  same  record  in  applying  for  an  injunc- 
tion, (r)  This  I  take  to  be  the  general  rule;(s)  so  that  the 
court  can  only  restrain  the  collection  as  to  the  parties  who  are 
actually  applying  for  the  injunction. (^)  And  thus  any  num- 
ber of  persons  may  join  whose  property  is  affected  in  common, 
although  their  interests  are  several. fzt)  The  interests  must 
be,  however,  one  as  to  the  question  involved,  and  the  subject- 
matter  of  the  suit.(/-)  But  it  is  not  necessari/  that  all  who 
are  alike  situated  as  to  the  tax  should  join.(?r) 

!^  62"2.  We  now  consider  the  legal  remedies  which  may  be 
resorted  to.  And  herein  we  do  not  speak  of  the  liability  of 
tax  officers  to  the  state  on  their  official  bonds,  given  to  secure 
the  faithful  performance  of  their  duties,  since  there  is  noth- 
ing peculiar  in  this — they  and  their  sureties  incurring,  by  de- 
fault, merely  the  ordinary  proceedings  on  official  bonds ;  and 
the  sureties,  when  made  liable,  being,  as  usual,  entitled  to 
contribution  among  themselves  and  from  the  principal.  So, 
let  this  passing  reference  suffice  for  our  present  purjDOse. 

And,  in  the  first  place,  we  remark  that,  although  the  tax 
officers  may  sometimes  be  held  responsible  in  an  action  of 
tort,  yet  in  no  case  of  injury,  whether  such  as  the  officers  are 
liable  to  an  action  for,  or  otherwise,  can  a  municipality,  at 
wdiose  instance  a  tax  is  levied,  be  sued  in  tort  therefor. (.r) 
Where  there  is  an  assessment  illegally  levied,  for  want  of 
jurisdiction  in  the  assessors,  the  tax  payer  may  hold  the  as- 
sessors liable  in  an  action  of  tort,  or  may  usually  recover  the 
amount  paid  under  pressure  from  the  municipal  corporation. 
But  he  cannot  have  both;  and  if  he  proceeds  in  assumpsit 
against  the  corporation  he  thereby  waives  all  right  to  an  ac- 
tion of  tort  against  the  officers. (.?/) 

Assessors  are  liable  for  acts  mala  fide,  even  in  matters  of 
discretion. (^")     If  a  tax  be  wholly  wrongful,  its  legality  may 

(/)nu    Page    Co.  V.  Jcnks,  65  111.  (?')Cuttino-   «.   Gilbert.   .O    Blatcb. 

■i?*;.  25!). 

(,s)Soe  Cooley  on  Taxation,  §  545.  (?r)Gilmore  v.  Fox.  10  Kan.  50!l. 

(/) Bridge  Co.  v.  W}\andotte  Co.  10  (.rj.Vlger  v.  Eastou,  119  Mass.  77. 

Kan.  :«().  (//)Ware  v.  Percival,  61  Me.  391. 

(")(-;ilniore  v.  Norton,  10  Kan  491.  (j)tStearns  «.  Miller,  25  Vt.  20. 


TAXATION.  COi 

be  tested  by  action  of  case  for  the  wrongful  assessment,  or  in 
trespass  ior  the  seizure, (a) — under  the  control,  however,  of  the 
principles  of  protection  stated  below.  In  regard  to  personal 
property,  replevin  will  lie  to  recover  it  from  the  possession  of 
the  officer  wlio  has  seized  it  on  an  illegal  tax,(?>)  provided 
there  was  a  want  of  authority  to  levy  the  tax;  but  otherwise, 
not;(c) — that  is,  the  seizure  must  he  on  a  rold\e\y.[(l)  If  a 
<3ollector  retains  a  distress  without  sale  for  a  longer  period 
than  that  prescribed  by  statute,  he  is  held  to  be  a  trespasser 
■<ih  initio. [e)  But  not  so  where  the  statute  does  not  jjrescribe 
-a  period,  and  the  collector  keeps  the  property  a  little  longer 
than  is  actually  necessary  to  give  notice  and  make  sale.f/') 
Where  an  action  of  trover  is  brought  against  an  officer  for  the 
value  of  property  taken  and  sold  for  municipal  taxes,  only 
immediate  questions  will  be  considered,  and  the  plaintiif  will 
not  be  allowed  to  question  the  regularity  of  the  organization 
■of  the  municipal  corporation;  the  assumption  of  corjiorate 
powers  camiot  thus  collaterally  be  assailed  by  a  j^rivate  per- 
son, (r/)  If  a  collector  sells  more  than  property  enough  to  pay 
n  just  tax  he  is  liable  for  the  excess,  although  he  will  not  be 
held  a  trespasser  ab  initio. [}i) 

A  court  has  no  jurisdiction  to  allow  a  sct-otf'  in  an  action 
for  the  collection  of  taxes.  A  municipal  corporation  must  he 
permitted  to  collect  its  local  revenue  on  jorinciples  of  public 
policy,  without  any  interruption  by  the  2)i"esentation  of  cross 
■demands.  (?) 

A  civil  action,  in  Mississippi,  lies  against  a  collector  ioi- 
Xn'inter's  fees  for  advertising  sales,  individually  ;  or,  if  he  goes 
out  of  office,  the  action  lies  against  his  successor;  on  the 
ground  that  the  officer  making  such  sales  is,  under  the  stat- 
ute, a  trustee  to  collect  the  money  and  "costs  for  the  persons 
i^ntitled  thereto. "(./) 

( ,)Pcrry  w.  Buss,  1')  N.  II.  222.  {/)Bir(l  »>.  .lonkio.s,  33  Mioh.  2s. 

.(/;)b'liVd  ,;.  Gilbmilh,  27  Ark.  OTf).  (//)Ilu(l. 

(^•jBiR'U,©.  Ball,  20  la.  2S2.  (//)Sft'kius  v.  Goodale,  Ki  Me.40O. 

{d}H.  K.  »'.  ("Icino,  2  Dill.  17;').  (i)IIii\vkins  v.  iSniiiter  Co.  57  Ga. 

(^)Kanis\vi>rlli  Co.  7'.  Kiiiid,  (jr)  Me.  Kilj :    Fiiiticgan    v.   FeriKiiKliiia,    15 

]!).  Fla.  37!>. 

(y) .Moore  v.  Map'eo,  4S  Miss.  507. 


G02  TAXATION. 

There  is  a  barbarous  enactment  in  Vermont  which  allows- 
t'.ie  imprisonment  of  a  tax  debtor,  not  for  fraud,  but  merely 
"for  want  of  goods  and  chattels  whereon  to  make  distress." 
But  the  officer  is  liable,  as  for  false  imprisonment,  for  in- 
foimalityin  housing  an  impecunious  delinquent. (A;) 

A  tax  payer  may  estop  himself  from  complaining,  as 
v.here  he  has  notice  of  an  assessment  for  municipal  improve- 
ments, and  makes  no  ol)jection,  but,  contrariwise,  encourages 
the  work  to  proceed  under  the  assurance  that  it  will  be  paid 

for.(0 

§  623.  The  protection  afforded  to  tax  officers  now  claims 
our  attention.  The  doctrine  of  presumption  as  to  them  is 
macii  the  same  as  that  relating  to  inferior  courts. (/;/)  In 
New  York,  however,  an  assessor  is  held  not  protected  in  a- 
case  where  he  makes  an  honest  mistake  as  to  the  residence 
of  one  who  proves  to  be  a  non-resident;  and  he  is  respon- 
sible personally  for  the  mistake,  although  at  the  time  of 
assessment  the  question,  from  the  facts  brought  to  the  knowl- 
edge of  the  assessor,  was  fairly  one  of  doubt. («)  I  think  this 
decision  is  not  a  good  precedent ;  because  an  assessor  ought  not- 
to  be  put  to  peril  for  a  conclusion  relating  to  a  matter  of  fact 
merely,  which  is  to  be  decided  on  evidence  presented  ;  and  there 
seems  to  be  no  reason  or  justice  in  holding  him  responsible  for  a 
deficiency  of  evidence.  This  is  a  hardship  which  should  not 
anywhere  be  imposed  on  a  useful  and  necessary  officer  in  the 
public  service.  The  policy  of  the  law  is,  protection  to  those 
who  lioiia  nde  and  diligently  perform  their  functions.  A  col- 
lector ought  not  to  be  required  to  look  beyond  his  warrant,  if 
this  is  regular  on  its  face. (oj  It  is  sufficient  that  the  munici- 
pality levyhig  the  tax  liad  jurisdiction   of  the  subject-mat- 

(A)I5(  adniiin  r.  Goldsmith.  4s  Vt.  State  r.  Lul/,  6.3  N.  C.  o('3;  Gore  v. 

403.  Masten,  lit!  N.  C.  503;  Lott  »;.  Hub- 

(Oeieepcr  i\  Bulleii.  (3  Kan.  300.  Iiard,  44  Ala.  593;  Le  Koy  v.  R.  U. 

(;//)Bate  >:.  Speed,  10  Bush.  044.  18  Mich.  233;  Xoland  v.  Bu.sby,  2S 

(;()l>onvin  «.  Slrickland,  57  X.  Y.  lud.  154;  McLean  ».  Cook,  23  Wis. 

4'.i2.  364  ;  Xeth  v.  Crotut,  30  Conn.  5sO ; 

(«)"aiiders   i\  Sinunons,  30  Ark.  Watson  v.   AVatson,   9   Conn.   140;, 

•J7:"i  .   Hinl  V.  Perkins,  33  Micii.  28;  Loomis  v.  Spencer,  1  Ohio  St.  153;. 

llnskine  w.  Ilahnhach,  14  Wall.  (513  ;  State  v.  .Jervey,  4  Strob.  :i04;  Slinw 


TAXATION.  003 

ier.(p)  If  the  paj)er  is  not  a  void  paper,  manifestly  he  has 
a  right  to  rely  on  it.  The  irregularitij  must  appear  on  the 
face  in  order  to  render  him  liahle.f^)  If  the  property  assessed 
is  not  wholly  exempt,  if  it  is  liable  to  taxation  in  any  form, 
tbe  assessor  has  jurisdiction,  and  the  collector  is  safe,  in  pur- 
suing his  \Yarrant,('r)  from  responsibility  for  all  irregularities 
except  his  own.(.s)  And  so  an  assessor  is  only  to  be  held 
responsible  for  bad  faith,  and  is  not  to  be  held  liable  in 
damages  for  an  erroneous  interpretation  or  application  of 
the  law.(i)  And  a  collector's  protection  is  not  dependent  on 
the  assessor's  jurisdiction  of  the  person  of  the  tax  payer  com- 
plaining:(/(')  but  it  fails  where  there  is  no  color  of  authority 
in  the  law ;  and  it  has  been  held,  in  Ohio,  that,  if  taxes  are 
assessed  under  an  aiico)i-'itit)iflon(il  hiv,  the  collector  is  liable(i') 
— a  principle  whicli  sliould  not  prevail,  because  it  is  not  the 
business  of  a  collector  to  decide  upon  the  constitutionality  of 
a  law,  and  where  a  law  compels  him  to  perform  an  act  he 
ought  not  to  be  held  responsible  for  the  a.ct.(iv) 

§  62i.  Where  an  illegal  tax  has  been  levied  and  collected, 
under  compulsion,  there  lies,  usually,  an  action  at  law  to 
recover  it  back.  A  more  voluntary-  payment  cannot  be 
recovered;  but  the  payment  must  be  compulsory  to  avoid 
distress  and  costs,  and,  in  general,  it  must  be  made  under 
direct  protest. (.c)  J3ut  where  one  can,  by  application  for  an 
al)atement,  secure  the  correction  of  an  error,  he  must  avail 
himself  of  it,  or  his  payment  will  be -regarded  as  voluntary,;.//) 

V.  Dennis,  5  Gilm.  405  :  Tlill  v.  Fi.ii,--  (p). Jefferson  City  v.  \i.  11.  4!)  .Mo. 

ley,  25  111.  156  ;  ^Moore  r.  Allegheny,  I'JU. 

is  Pa.  St.  55  ;  Billino-s  w.  liussell,  (7)Savings  Assoc^iation  r.   Liglit- 

23  Pa.  St.  189  ;  Bianchanl  v.  Goss,  ner,  47  Mo.  393. 

2N.  H.  491;  Kelley  «.  I«Joyes,  43  N.  (/•)Insnrance   Co.    v.   Cliarles,   47 

II.  209;    Brainard  v.  Head,  15   La.  3[o.  462. 

An.  489;  llolden  «.  Eaton,  8  Pick.  (.sjCarville    «.    Aildifon.    62    Me. 

436;   Underwood  w.    I{ot)inson,  106  459 

Mass.  296;  Turner  v.   Franklin,  29  (OK.  R.  e.  Ilorton,  38  la.  33. 

Mo.  2-^5  ;  Walden  v.  Dudley, 49  Mo.  (M)Norvell  'J.Tripp,  61  ]\[e.  426. 

419;  Ford  '(•.  Clougb,8  Greenl.  334;  (/jjLooniis  «.  Spencer,  1  Ohio  St. 

Norvcll  ».  Tripp,  61  Me.  426;   Sava-  153. 

cool   '0.    Boughton,   5   Wend.    171  ;  (w)('lark  v.  Axford,  5  Mich.  liS3. 

Chegaray  ».  .Jenkins,  5  N.  Y.  376.  (a')Turner  r).  Aithaus,  6  Neb.  54. 

(i^)VVaile  v.  I'riiiceton,  66  :\Ie.  225. 


(;(>i  TAXATION. 

The  general  rule  is  stated  by  the  United  States  supreme  court 
to  he,  that  taxes,  illegally  assessed  and  paid,  n.av  always  he 
recovered  hack  if  the  collector  nnderstandsfrom.  the  tax  payer 
that  the  taxes  are  regarded  as  illegal,  and  that  suit  will  1)0 
instituted  to  recover  them.(--)  The  absence  of  a  warrant  will 
not  necessarily  render  a  payment  voluntary.  («)  But,  where  a 
tax  is  paid  voluntarily,  technical  illegalities  in  the  assess- 
ment will  not  afterwards  avail  anything. (/>)  And  where  a 
person,  with  full  knowledge  of  the  facts,  voluntarily  pays  a 
demand,  though  attempted  or  threatened  to  be  enforced  by 
proceedings,  it  will  not  be  considered  as  paid  by  compulsion, 
and  the  party  thus  paying  is  not  entitled  to  recover  back  the 
money  paid,  though  he  may  have  protested  against  the 
unfounded  claim  at  the  time  of  payment  made.  \\  tiere 
money  has  been  paid  under  a  mistake  of  the  facts,  or  under 
circumstances  of  fraud  or  extortion,  or  as  a  necessary  means 
to  obtain  the  possession  of  goods  wrongfully  withheld  from  the 
party  paying  the  money,  an  action  may  be  maintained  for  the 
money  wrongfully  exacted.  But  such  action  is  not  maintain- 
able in  the  naked  case  of  a  party  making  payment  of  a  demand 
rather  than  resort  to  litigation,  and  under  the  supposition 
that  the  claim,  which  subsequently  turned  out  to  be  unau- 
thorized by  law,  was  enforceable  against  him  or  his  property. (c; 

In  Massachusetts  a  payment  is  held  to  be  voluntary,  al- 
though the  tax  is  illegal,  if  made  before  the  issuing  of  pro- 
cess for  its  collection. ''r/;  And  so,  in  Pennsjdvania,  it  is  held 
that  a  payment  of  taxes  is  not  compulsory  because  made 
under  a  threat,  express  or  implied,  that  the  legal  remedies 
for  it  will  be  resorted  to.(<') 

In  regard  to  a  protest,  this  is  regarded  as  an  assertion  of 
illegality. (/)  But,  where  an  officer  makes  demand  under  j>ro- 
cess,  it  is  held,  in  Michigan,  that  no  protest  is  necessary. (</) 

(i)Erskine    v.     \nn    Arsdale.    15  (<Z)Bairett ».  Canibiidsre,  10  Allen, 

Willi.  7.5.  4^. 

(rt)Babcock  v.  Granville.  44   Vt.  {e)Tay\0T  v.  Board  of  Health,  :!l 

32&.  Allen  v.  Burlington,  45  Vt.  202.  Pa.  St.  73. 

(6) People  ex  rel.  o.  Miner,  46  111.  (/")Louden    v.  East   Saginaw.   41 

374.  Mich.  is. 

((■)Lcsler  v.  Baltimore,  20  Md.  41;',.  (6r)Atwell  v.  Zeluff,  20  Mich.  11>-. 


TAXATION.  (JOS 

In  Iowa  a  party  paying  under  protest  must  then  make 
demand  for  the  return  of  the  money  before  resorting  to  an 
action. (/i)  The  rule  of  protest,  in  California,  is  that  if  the 
officer  has  notice  of  the  illegality  no  protest  is  necessary; 
if  not,  a  protest  is  necessary;  it  being  the  object  of  the  pro- 
test to  give  notice  that  the  legality  is  disputed,  (i)  Thus,  a 
tax  collector  is  bound  to  know  the  limits  of  his  district;  and 
if  he  e^iforces  a  tax  bej^ond  these  limits  a  general  protest  is 
suflticient  to  autiiorize  an  action  to  recover  it  back.(,/)  The 
forni  of  protestation  is  held  to  be  immaterial,  although  it 
must  be  a  distinct  and  definite  protest  against  paying  the  par- 
ticular tax  on  the  ground  of  its  illegality ;( A:)  and,  in  the  ab- 
sence of  a  present  remedy,  such  as  abatement  by  applica- 
tion, (^)  or  some  mode  of  effective  resistance. <//() 

In  Alabama,  where  one  promised  the  collector  that  if  he 
would  postpone  the  sale  until  the  following  day  he  would  pay 
the  taxes  and  costs  as  charged,  and  did  so,  the  payment  was 
held  voluntary,  and  precluded  an  action  to  recover  it  back, 
notwithstanding  he  professed  to  pay  under  protest, (u)  and 
notwithstanding  the  general  rule  that  payment  made  under  the 
stress  of  a  legal  process  is  compulsory. (o)  If  one  brings  re- 
l)levin,  and  then,  without  protest,  pays  the  taxes,  he  waives 
his  right  to  recover  back  the  taxes,  the  payment  being  re- 
garded as  voluntary. (j>)  The  same  principles  apply  to  an 
occupdtioii  f(tv.(q)  And  they  seem  to  apply,  also,  to  transac- 
tions between  individuals.  If  one,  without  request,  pays 
taxes  for  another,  he  cannot  recover  from  the  latter ;  and  this 
likewise  applies  as  between  corporations.! r)  However,  if  one 
jiays  taxes  under  a  title  which  he  supposes  to  be  valid,  but 
which  proves  to  be  defective,  he  can  recover  from  the  true 

|//)Hicli;inl.s  •/;.  A\'apcllo  Co.  4S  la.  fnilfiUcliett    v.    M(':ill,    50    Ala. 

f,(i7.  3(tT. 

(j)Meck  V.  McChirc,  49  Cal.  t;^'*.  ('^)Pc()pl('  /'.r  rcl.  v.  K.ist  Saginaw, 

(j)Ma.s()n  V.  .Joluisoii.  51  Cal.  012.  40  Alicli.  ;!:i(i. 

(A;)Ki)ii<!rs   V.   (TniCnbusli,  58   Me.  (/y)I>usl)y  v.  Noland,  o9  lad.  234. 

390.  {7)Galvcstou    Co.  v.  Goiliani,  49 

(/)Salmon   «.  Hanover,  13   Allen,  Tex.  271). 

119.  (/•) Homestead    Co.    v.   11.    R.   17 

{m)Walker  c.  St.  Louis,  15  Mo.  Wall.  153. 
563. 


606  TAXATION. 

owner  the  amounts  he  has  paid  during  his  claim  of  owner- 
ship.(s)  And  where  a  purchaser  at  a  tax  sale  paid  taxes 
after  the  land  was  redeemed,  under  a  deed  issued  hy  mistake, 
he  was  held  entitled  to  recover  the  same.(f)  But  where  one 
relied  on  a  receipt  of  a  collector,  given  on  receiving  a  check, 
which  was  afterwards  dishonored,  so  that  the  amount  was  col- 
lected from  the  property  in  the  hands  of  the  purchaser,  it  was 
held  he  could  not  sue  the  collector. (jt)  Where  a  county  pur- 
chases lands  for  taxes  illegall}-  assessed  thereon,  and  sells  the 
land  to  a  purchaser,  the  latter  can  recover  what  he  paid 
Tinder  the  void  certificate,  in  Wisconsin. (?') 

To  recover  back  payments  it  must  be  shown  that  the  tax 
was  erroneous  or  illegal  in  the  assessment.  An  action  will 
not  lie  to  recover  from  the  county  for  taxes  paid  merely  under 
a  misapprehension  in  regard  to  the  ownership  of  the  taxed 
property,  where  the  tax  payer  had  full  knowledge  of  the  facts 
upon  which  his  claim  of  title  is  hased.(ic)  The  illegality  may 
exist  in  the  desupi;  and  where  an  action  is  brought  to  recover 
back  money  paid  for  a  tax  illegal  because  levied  in  part  for 
an  illegal  purpose,  it  is  held  not  to  be  necessary  to  show  that 
the  money  was  actually  applied  to  the  purpose. (x)  And  the 
illegality  may  be  in  an  overvaluation  which  the  assessors 
refuse  to  correct. (?/) 

The  appropriate  action  is  indehlfatua  assiDupsit  for  money 
had  and  received  ;(^)  and  may  be  available  to  a  private  cor- 
poration, as  well  as  an  individual. (a) 

Of  course,  an  action  will  not  generally  lie  against  the 
state; (6)  and  in  an  action  against  a  town  recover}-  can  be 
had  only  for  what  had  been  paid  as  town  taxes  and  has  gone 
into  the  treasury. (c)     And,  in  Massachusetts,  it  has  been  held 

(«)Goodno\Vi".  Moulton,  51Ia.  .555.  (^)Ad;im   v.  Litchfield,  10  Conn. 

(ijFenton  v.  'Way,  40  la.  196.  127  ;  Preston  v.  Boston,  12  Pick.  7  ; 

(?/)Kahl  V.  Love,  37  N.  J.  5.  Stephenson    Co.  v.  Mann}',  56   111. 

(«) Marsh  v.  St.  Croix  Co.  42  Wis.  160. 
356.  (ojDunnell  Maniif  g  Co.  v.  P.nv- 

{'w)li.  K.  V.  AVebster  Co.  40  la.  16.  tucket,  7  Gray,  277. 

(i)Gillette  v.  Hartford,  31  Conu.  (6)Shoemaker  e.  Grant  Co.  3<jln.]. 

352.  176. 

(^).James  v.  New  Orleans,  19  La.  (cjSlack  «.  Norwich,  32  V't.  SI??. 

An.  109. 


TAXATION.  G07 

that  a  town  is  not  liable  for  taxes  paid  on  an  assessment  in 
a  school  district;  the  money  being  received  by  the  town  treas- 
urer merely  as  an  agent  for  the  district. ((i)  But  it  is  differ- 
ent in  Wisconsin,  where  it  is  held  that  the  town  is  liable  on 
account  of  school  district  taxes,  although  the  statute  makes  no 
jirovision,  as  in  other  cases,  for  refunding  what  it  is  compelled 
to  pay.(e)  In  ]\[ichigau  it  is  held  that  a  municipality  cannot 
escape  liability  on  the  ground  that  the  money  exacted  was  not 
designed  for  municipal  purposes,  it  having  Ijeen  received  into 
its  treasury.     Grand  Rapids  v.  Blakele//,  40  Mich.  307. 

As  to  the  eft'ec:  of  sidjscquent  legislatk»i  on  pending  causes, 
it  is  held  that  a  repeal  takes  away  all  right,  unless  the  repeal- 
ing act  expressly  saves  all  pending  suits ;  since  such  right  of 
action  docs  not  exist  at  common  law,  but  is  wholly  statu- 
tory.(/)  And  so  an  act  legalizing  the  assessment  under 
which  the  tax  was  paid  has  been  held  to  take  away  all  rights, 
notwithstanding  the  pendency  of  suit.(//) 

When  a  part  ojily  of  a  tax  is  illegal,  there  must  be  a  tender 
of  the  legal  portion,  when  ascertainable,  before  there  can  be 
XI  right,  of  action,  even  on  an  involuntary  payment. (/<) 

In  Massachusetts  a  trustee  under  a  will  cannot  maintain 
a,  bill  in  equity  against  two  towns,  to  determine  in  which  he 
is  liable  to  be  taxed.  He  must  pay,  and  then  sue  to  recover 
it  back  if  it  proves  to  be  erroneous,  (i) 

In  New  York  there  is  no  liability-  for  an  illegal  assessment 
and  payment,  on  the  part  of  a  municipal  corporation,  where 
the  'assessors  had  jurisdiction  of  the  subject-matter  and  the 
party. (j)  Nor,  in  any  case,  as  to  the  state  taxes. (/b)  It  is 
alleged  that  only  fraud,  imposition,  or  extortion  will  give  a 
right  of  action. (0 

((Z) Perry  ?>.  Dover,  l:i  Pick.  20G.  aclmsefts.     Manuf'g   Co.  ?>.   AmeR- 

(*^)Ma1leson  v.  IJoseiidalc,  57  Wis.  l>ury,  17  Mass.  463. 

2.'')').  (/)Mac'y  v.  Nantucl<et.   121  Mass. 

(/)Sl.  Joseph   Co.   t'.   Kuekman,  351. 

57  iu.i.  9tJ.  (j)H\vif1.  V.  Foughkeopsic,  37  N. 

(7)Gvim  «.  Hcliool  District,  57  Pa.  Y.  511. 

St.  43:5.  (/.:)l',ank  «).Nc\v  York,  51  Barl).  159. 

(//)Bmk  «.  Clialfaut,  51  Cal.  471.  (;)Newiiiaii   v.   Livingston    Co.   I 

Forraeijv  it  was  otherwise  in  Mass-  Lans.  479. 


COS  POWER    OF    COURTS    Of    EQUITY    TO    SELL    LANDS. 


CHAPTER  XXII. 

POWER    OF   COURTS    OF    EQUITY    TO    SELL    LANDS. 

^  ()25.  General  statement. 

62t).  Equity — no  inherent  absolute  right  to  sell  lands. 

627.  The  power  is  .statutory. 

62s.  Law  of  the  place  controls. 

629.  Proceedings  in  partition. 

630.  Kinds  of  property-  subject  to  partition. 

631.  Clear  legal  title  necessar}-. 

632.  And  a  present  right  of  possession. 

633.  Parties  in  general. 

634.  Infant  parties. 

63').  Duplicity  in  partition  proceedings. 

636.  Sale  of  lands  in  partition. 

637.  Partition  should  be  entire  and  thorough. 

638.  Parties  in  equity  to  proceedings  to  sell  land. 
63i).  Sales  at  tlie  instance  of  minors  as  plaintiffs. 

640.  Estates  in  remainder. 

641.  Remainder-men  nuisl  he  jiarties. 

642.  Confirmation  of  sales. 

643.  Resales. 

5  025.  In  addition  to  what  has  previously  been  said  in 
rej^ard  to  the  general  jurisdiction  of  equity,  we  may  ap- 
propriately consider  here,  at  the  conclusion  of  the  first 
vohime  of  this  work,  the  j)ecnruir  province  of  equity  to  sell 
real  estate.  It  does  not  come  within  our  purview  to  treat  of 
the  sale  of  lands  under  a  mortgage,  any  more  than  to  treat 
of  sales  under  execution  by  courts  of  law — these  relating 
merely  to  means  of  coUeetintj  debts,  and  therefore  to  be  re- 
garded rather  as  executory  than  as  jurisdictional. 

§  t)2t;.  In  pursuance,  then,  of  our  special  topic  here,  we 
remark,  in  the  first  place,  that  even  equity  has  no  inherent 
ahsoliUe  right  to  make  arbitrary  sales,  even  in  the  collection  of 
debts.  It  must  constantly  be  borne  in  mind  that  courts  of 
equity  are  as  much  bound  by  statutory  regulations  as  courts 


POWER    OF    COURTS    OF    EQUITY    TO    SELL    LANDS.  609 

of  law.  In  this  particular  there  can  be  no  difference  what- 
ever. Courts  of  equity  cannot  "go  beyond  the  law  and 
create  a  new  right.  Equity  cannot  construe  a  statute  other- 
wise than  a  court  of  law  can.  Both  courts  are  bound  by  the 
same  rules  of  construction,  insomuch  that  it  is  a  maxim  that 
'Eqaitas  sequitur  legem.'  Equity  will  remove  impediments 
which  are  in  the  way  to  legal  rights,  and  will  give  redress 
where,  according  to  the  forms  of  procedure  at  law,  the  com- 
plainant might  have  a  right  without  a  remedy,  or  where  that 
remedy  would  be  incomplete.  Equity  will  enforce  a  recog- 
nized right  in  a  manner  unattainable  at  law ;  but  it  cannot 
create  a  right  unknown  to  the  law. "(a)  "The  same  rules  of 
decision  govern  both  courts :  equity  cannot,  any  more  than  a 
court  of  law,  decide  in  opposition  to  legal  principles  in  a  case 
to  which  those  principles  are  applicable ;  to  do  so  would  be  an 
assumption  of  an  arbitrary  discretion  as  pernicious  to  the 
best  interest  of  the  community  as  it  is  contrary  to  the  fun- 
damental principles  of  our  government.  Even  those  rules  of 
law  which,  in  their  nature,  are  technical  and  positive,  can- 
not be  disregarded  by  a  court  of  equity,  "(i) 

§  027.  Moreover,  the  power  of  equity,  or  of  courts  of  law, 
or,  indeed,  of  individuals,  to  alienate  real  estate,  is  wholly 
statutory.  For  example,  the  whole  power  of  a  court  of  equity 
to  sell  the  lands  of  infants  is  derived  from  statute,  and  there 
is  no  such  inherent  jurisdiction. (c)  The  rule  in  this  particu- 
lar was  first  laid  down  in  Tmjlor  v.  Phillips,  2  Ves.  23, 
wherein  Lord  Chancellor  Hardwicke  declared  that  "there  is 
no  instance  of  this  court  binding  the  inheritance  of  an  infant 
by  any  discretionary  act  of  the'  court.  As  to  personal  things, 
as  in  the  composition  of  debts,  it  has  been  done;  but  never 
as  to  the  inheritance,  for  that  would  be  taking  on  the  court 
a  legislative  authority,  doing  that  which  is  properly  the  sub- 
ject of  a  private  bill."  In  following  this.  Lord  Chancellor 
Hart  afterwards  said :  "I  have  no  authority  to  bind  an  in- 
fant's legal  real  estate.  That  was  decided  long  ago,  by 
Lord  Hardwicke,  in  Taylor  v.  Phillips.     The  chancellor  has 

(a)Buford  v.  Buford,  1  Bibb,  307.  (c)OnderdoQk   «.  Mott,  34  Barb. 

(<'>)Mar,shal  v.  Craig,  1  Bibb,  395.      113. 
v.l— 39 


610  POWER    OP    COURTS    OF    EQUITY    TO    SELL    LANDS. 

never  since  attempted  to  deal  with  the  legal  inheritance 
of  infants  without  the  aid  of  an  act  of  parliament.  "(^)  So 
that,  independent  of  a  direct  authority  given  by  statute, 
chancery  has  no  power  to  order  a  sale  of  lands  belonging  to 
an  infant,  under  any  circumstances  whatever, (e)  for  re-in- 
vestment, or  for  any  other  purpose.  And  so  a  statute  con- 
ferring such  power  must  be  strictly  pursued ;(/)  although,  of 
course,  whatever  is  necessary  to  carry  into  effect  the  pro- 
visions of  a  statute  may  be  regarded  as  belonging,  by  fair 
implication,  to  the  jurisdiction. (^)  Bat  it  is  not  to  be  inferred 
from  the  general  authority  of  a  court  of  equity  as  guardian  of 
infants,  that  it  may  sell  their  real  estate  whenever  it  is  for 
their  advantage  to  do  so.  The  power  must  be  expressly  con- 
ferred, although,  when  conferred,  it  carries  with  it  the  inci- 
dental methods  of  giving  it  effect. (/t)  We  shall  have  occasion 
to  recur  to  this  subject  again.  See  sections  634,  638,  639, 
641,  infra. 

The  same  principles  apply  to  the  sale  of  real  estate  belong- 
ing to  insane  persons,  (i)  And  to  all  persons  or  corporations 
under  disability;  as,  for  example,  religious  corporations. (j) 

§  628.  Moreover,  it  is  the  law  of  the  place  where  land  is 
situated  which  governs  all  alienations,  whether  by  individuals 
or  by  courts ;  title  can  only  be  acquired  and  lost  in  the  man- 
ner indicated  by  the  local  statutes; (A;)  and  whether  by  deed 
or  by  devise. (/) 

§  629.  We  will  now  proceed  to  consider  proceedings  in  parti- 
tion, which  often  involve  sales,  and  which,  even  on  division, 
partake  of  the  nature  of  judicial  transfers.  Essentially,  a 
proceeding  in  partition  is  an  equitable  proceeding ;  (m)  although 
it  is  held  that  the  jurisdiction  may  be  exclusively  transferred 
to  a  court  of  law  by  statute  ;(w)  and  it  may  even  be  given  to 

((-?)Rn.«sel  i>.  RuRsel,  1  Malloy,  525.  (./)Burlon's  Appeal,  57  Fa.  St.  213. 

{<')Uogcr.s  V.  Dill,  6  Hill,  417.  (^'jU.  S.  v.  Crossley,  7  Cranch,  115  ; 

(fjVowlcss'  Heirs  v.  Buckinan,  li  Clarke  v.  Graham,  6  Wheat.  577. 

Dana,  466.  (?)McCormick     «.     Sullivant,    10 

(,7)Williamson  v.  Perry,  8  How.  Wheat.  192. 

55fi.  (»r)Deery  v.  McCIintock,  31  Wis. 

(/OFaulkner  W.Davis,  18  Gratt.  651.  195  ;  Howey  «.  Going.s,  13  HI.  95. 

(2)  Wing  V.  Dodge,  80  HI.  567.  (n)  VVilhridge  «.  Case,  2  Carter,  3<). 


POWEU  OF  counrs  of  K(irriY  to  sell  lands.         611 

a  probate  court  ;(f))  which  may  then  order  a  sale  of  lands ;(/;) 
and  the  decision  of  a  jjrobate  court  herein,  it  is  lield,  cannot 
be  collaterally  questioned.  (V/'i 

As  in  other  cases,  so  in  matters  of  partition,  a  court  of 
equity  will  adjudicate  all  the  equities  arising  out  of  the  com- 
mon tenancy,  and  adjust  its  decree  to  the  fall  exigency  of  the 
case.(?')  And  it  is  not  a  necessary  preliminary  to  the  com- 
mencement of  proceedings  that  an  attempt  should  be  made 
for  a  private  partition,  (s) 

And,  in  general,  mere  statutury  renuhit'Kms  do  not  take 
away  the  original  jurisdiction  of  equity  in  matters  of  i^artl' 
tion.{t)  The  jurisdiction  existed  at  common  law,(t()  and 
therefore  it  can  only  be  withdrawn  by  an  express  statute,  and 
not  by  one  giving  concurrent  authority  to  other  courts. 

§  630.  As  to  the  Idiuls  of  property  subject  to  the  jurisdic- 
tion, it  has  been  held,  in  New  York,  that  pergonal  property 
may  be  partitioned  in  equity,  or  sold,  if  necessary. (r)  But 
this  seems  to  me  anomalous.  Eeal  property,  to  be  the  sub- 
ject of  partition,  must  be  held  jointly,  in  common,  or  in 
coparcenary.  Premises  belonging  in  severalty  to  two,  and 
no  portion  of  them  belonging  jointly  to  both,  are  not  a  proper 
subject  of  jurisdiction  in  this  regard;  as,  for  example,  differ- 
ent portions  of  a  building,  held  under  separate  deeds  by  differ- 
ent parties. («')  Nor  is  it  all  jiropertj'  which  is  jointly  held 
that  can  be  partitioned.  Thus,  association  property,  held  in 
common  by  a  community,  under  a  rennnciation  of  Individual 
r'ujhts  of  property,  cannot  be  divided  among  the  members  by 
partition  proceedings. (r)  But  it  is  held  that  real  property 
which  constitutes  a  stock  in  trade  of  a  partnership  may  be 
partitioned — there  being  no  outstanding  firm  liabilities. (//) 
There  can  be  no  partition  of  a  homestead  held  in  common 

(o)C()X  «.  Ingicston,  HO  Vt.  258.  (»)Tiiincy   «.    Slohhiiis,    28    Burl>. 

(p)Kann's  Estate,  69  Pa.  St.  219.  290. 

((/)Davise.  Wells,  37  Tex.  606.  (w)McConnel  *;.  Kihhc,  4.S  Jil.  v:\. 

(r)Packard  v.  King,  3  Col.  212.  (.t')Gocsele  v.    Biiiielrr.   14   How. 

(8) Lake  «.  .Tarrett,  12  Ind.  395.  589. 

(^)Patton  V.  Wagner,  39  Ark.  2.33.  (i/)Patterson    v.    Blake,    12    Ind. 

(M)Iioppcr    V.    Fisher,    2    Plead,  136. 
253 


r>12  POWER    OF    COURTS    OF   EQUITY    TO    SELL    LANDS. 

by  a  family,  for  this  would  be  to  break  up  the  homestead. (^) 
A  water-power,  mills,  and  machinery,  held  in  common,  may 
be  partitioned  all  together,  (a)  And  so  it  is  with  mining 
claims,  even  upon  the  public  mineral  lands  of  the  United 
States;  for  here  the  claimants  are  owners  against  all  other 
persons,  and  have  vested  rights  founded  on  their  possession 
and  appropriation  of  the  land  containing  the  mine.(i') 

Until  the  time  of  Henry  YIII.  partition  was  confined  to 
coparceners,  but  during  his  reign  a  statute  was  enacted  which 
extended  the  right  to  co-tenancy  as  well.(c) 

§  631.  The  matter  of  a  clear  legal  title  is  of  primary  impor- 
tance in  partition  proceedings,  and  in  questions  of  jurisdic- 
tion. Equity  will  not  make  partition  while  the  legal  title  is 
in  dispute  ;(ci)  although,  as  lately  in  Illinois  and  Tennessee, 
a  court  of  equity  may,  as  an  incident,  be  endowed  with  power 
to  settle  the  title.  In  Connecticut,  however,  it  is  held  that 
the  law  providing  for  the  partition  of  real  estate  contemplates 
an  equitable  partition  according  to  real  ownership,  rather 
than  a  partition  according  to  the  precise  legal  interests;  yet 
where  the  legal  interests  are  certain,  and  the  facts  render  the 
equitable  proportions  entirely  uncertain,  it  is  held  the  safe 
rule  is  to  follow  the  legal  title. (e)  In  Iowa  it  is  held  that 
even  equitable  titles  are  a  proper  basis  for  partition. (/)  The 
exact  opposite  is  held  in  Illinois ;((/)  and  this  is,  I  think,  in 
consonance  with  the  general  rule.  Yet,  where  an  exercise  of 
equity  jurisdiction  in  removing  clouds  on  the  title  is  a  neces- 
sary preliminary  to  a  partition,  this  may,  no  doubt,  always 
be  obtained. (/?)  But,  where  necessary,  a  title  at  law  must  be 
first  established  before  equity  will  decree  partition. (i)    Equity 

(3)Trotter  v.  Trotter,  31  Ark.  145  ;  (r)Colemau  v.  Coleman,  19  Pa.  St. 

Nicholas   V.    Purczell,    21   la.    266;  (7  Harris,)  100. 

Burns  v.  Keas,  21  la.  312 ;  Dodds  v.  ((Z)Hardy  v.  Mills,  35  Wis.  141. 

Dodds,  36  la.  312.  (^'jKelley  v.  Madden,  40  Conn.  274. 

(a) Cooper  ».  Water-power  Co.,  42  (/)Welcli  v.  Anderson,  2  Clarke, 

la.  398  ;  De  Witt  «.  Harvey,  4  Gray,  299. 

497;   Hills  v.  Dey,  14  Wend.  206;  ((7)AVilliams   r.   Wigajand,   53   111. 

Morrill    v.    Morrill,    5   N.    H.    134;  233. 

Hanson  v.  "Willard,  12  Me.  142.  (7/)Leverton  v.  Waters,  7  Cold.  20. 

(/^)Huglies    V.    Devlin,     23     Cal.  (<)Shearer   v.   Winston,   33  Miss. 

501.  1411  ;   Has.sam  v.  Day,  39  Miss.  392. 


POWER  OF  COURTS  OF  EQUITY  TO  SELL  LANDS.     618 

■will  only  settle  equitable  titles, (j)  unless  otherwise  provided 
by  express  statute.  And  so,  where  a  jDure  question  of  law  is 
presented  in  the  construction  of  a  deed,  it  has  been  held  that 
equity  will  require  the  title  to  be  established  at  law  as  to  the 
deed  in  question  ;(/»•)  for,  in  general,  a  bill  for  partition  will 
not  lie  wiiere  the  title  is  denied,  or  where  it  de^^ends  on 
doubtful  facts,  or  on  questions  of  law.  (7)  If  the  title  in  dis- 
pute, however,  is  an  equitable  one,  the  court  may,  as  above 
remarked,  settle  it ;  but  otherwise,  in  the  absence  of  an 
express  statute,  it  can  onl}^  retain  the  cause  to  afford  the 
parties  the  opportunity  of  settling  the  matter  of  title  at  law, 
or  else  dismiss  the  petition,  as  the  circumstances  may  seem  to 
require.  (?n) 

§  632.  A  present  right  of  possession  is  also  a  prerequisite 
to  the  exercise  of  the  jurisdiction.  A  mere  right  of  entry  is 
not  sufficient.  Where  lands  are  held  adversely,  so  that  the 
possession  amounts  to  a  disseizin  of  the  petitioner,  and  the 
premises  were  never  held  by  them  together,  the  petition  can- 
not be  sustained. (?i)  And  a  tenant  in  common  of  a  mere 
reversion  in  land  expectant  on  a  lease  for  years,  cannot  have 
a,  partition;  and  if  he  brings  a  petition  when  he  has  no  pres- 
ent right  of  possession,  and  acquires  such  right  pending  the 
proceedings  and  before  hearing,  this  subsequent  right  will  not 
save  the  jurisdiction  and  entitle  him  to  a  decree. (o)  Estates 
in  remainder,  or  reversion,  are  always  excluded,  (^9)  except 
where  tliey  have  become  immediate,  carrying  a  present  right ; 
when  they  are,  of  course,  subject  to  the  jurisdiction,  as  any 
other  estate,  (rj-)  And  the  same  principles  apply  to  an  estate 
held  in  trust. (r) 

Actual  dccupancy  is  not  required;   partition  may  be  made 

(/)C;irtei-  v.  Taylor,  3  Plead,  80.  (OT)Diicas  v.  King-,  2  Stockl.  277. 

(/.:)Hoiton  V.  Pledge,  29  Ala.  478.  (vv)Brock  v.  Eastman,  28  Vt.  (558. 

(^jDewitt  V.  Ackernian,  17  N.  J.  (o)Hunnewcll  v.  Taylor,  6  Cush. 

Eq.  215  ;  Manners  v.  Manners,  16  N.  472. 

J.  Eq.  384;  Van  Riper?).  Berdan,  2  (/))Robertson  v.  Robertson, 2S\van, 

Green,  N.  J.  132 ;  Wilkin  v.  Wilkin,  197. 

1  Johns.  Ch.  Ill ;  Coxe  t>.  Smith,  4  ((?)Tindal  v.  Drake,  51  Ala.  577. 
Johns.  Ch.  271 ;  Blymman  «.  Brown,  (r)lbid. 

2  Vern.  232. 


014  POWER    OF    COURTS    OF    EQUITY    TO    SELL    LANDS. 

of  unoccupied  or  vacant  lands,  the  law  itself  annexing  the 
r(;;!it  of  2)ossessio)i  to  an  undisputed  title. (.s)  The  requirement 
is  that  there  should  exist  a  present  and  uudispiifcd  right  of 
j)OSsession.  And  this  requirement  extends  so  far  that  parti- 
tion will  not  be  granted  until  an  estate  is  settled,  for  the 
lands  may  be  needed  to  pay  the  debts  of  the  estate,  so  that 
tlie  right  of  the  heirs  is  not  absolute  until  it  is  ascertained 
that  the  lands  will  not  be  needed  for  this  purpose. (f) 

There  seems  to  be  an  exception  in  Maine  as  to  an  adverse 
occupation.  The  court  holds  that  unless  the  adverse  pos- 
session has  continued  long  enough  to  ripen  into  a  title,  parti- 
tion may  be  made  of  the  lands  the  disseizor  occupies,  and 
without  making  him  a  party.  (») 

I'ut  the  general  rule  is  as  I  have  stated  above.  On  this, 
the  Mississippi  court  remark:  "The  rule  is  that  a  court  of 
equity  will  never  grant  relief  when  the  complainant's  title  is 
denied,  or  suspicious,  until  he  has  established  his  title  at  law. 
Partition  can  only  be  made  between  those  in  the  actual  or 
c(mstructive  possession.  Other  claimants  must  establish 
their  right  by  suit  at  law,  and  obtain  actual  seizin  before 
they  can  demand  partition.  A  mere  right  of  entry  will  not 
sustain  a  proceeding  for  partition. "(/•)  It  is  not  necessary, 
however,  that  all  should  have  the  same  possession.  One  may 
have  an  avtiud,  and  another — as,  for  example,  a  sole  re- 
mainder-man— may  have  a  eonstructire  possession ;  and  the 
latter  can  maintain  a  l)ill  for  partition. (/c)  The  common- 
hiw  rule  still  prevails  that  one  must  be  in  possession,  or 
seized,  in  order  to  have  a  standing  in  court  ;(.r)  but  netual  oc- 
cupancy, as  above  remarked,  is  not  necessary.  It  must  be  a 
present  riijlit  of  possession,  and  not  a  mere  right  of  entry,  as 
for  condition  l)roken.((/)      And  a  l)ill  will  not  lie  to  compel 

(A-)Hyers  «.  Danley,  27  Aik.  77.  «.    K;i.stinau,   2^^    Vt.   (5.')S.     A   mere 

(i)Bc'echerv!.  Heecher,4o  Conn,  u'u .  judjiment  lien,  liowcver,  coufeiring 

(u)lilton  V.  Palmer,  31  Me.  487.  no  title,  does  not  hinder  a  jjartition. 

(»i)Spiglit  v.  Waldron,  51  Miss.  3G0 ;  Danton  v.  "Woods,  19  La.  An.  oo't-. 

Shearer  v.  Winston,  33  Mis.s.   151;  (;r)Sullivnn  >'.Siillivan,4IIun.2(tO. 

IMcc  V.  Crone,  44  Miss.  577  ;  Clnpp  (.?■)  Adams  -n.  Iron  C^o.  24  Conn.  230. 

f).  ]5romagham,  9  Cow.  530;  Wilkin  (//)Whitten    v.  W  hilt  en,  :i(;  N.  H. 

V.  Wilkin,  1  Johns.  Ch.  Ill;  Brock  32(1. 


POWER    OF    COURTS    OF    EQUITY    TO    SELL    LANDS.  ()15 

persons  in  adverse  possession  of  lands  to  surrender  them,  in 
order  that  they  may  be  partitioned,  even  though  the  bill 
alleges  that  all  parties  claim  under  the  same  will,  and  prays 
the  construction  of  the  will;(^)  unless  tbe  matter  involves 
mere  equitable  rights,  in  contradistin(3tion  to  legal  rights,  (a) 
And  so,  where  one  tenant  in  common  ousts  another,  the  latter 
must  establish  his  title  at  law,  in  the  absence  of  a  statute 
giving  the  equity  court  incidental  jurisdiction  to  settle  all 
titles,  before  he  can  maintain  an  action  for  partition  ;  (h)  and 
an  exclusive  possession  may  amount  to  an  ouster;  if  it  does 
not,  it  will  not  exclude  partition. (c) 

And  where  one  holds  an  irrevocable  power  of  attorney  to 
sell  lands  for  the  benefit  of  the  owners,  none  of  the  owners 
can  maintain  a  suit  for  partition  without  the  consent  of  all; 
because  here  is  a  barrier  both  to  title  and  possession. (rZ) 

In  Massachusetts  it  is  held  that  although  a  mortgagee  in 
that  state  is  regarded  as  the  owner  of  the  fee,  and  conse- 
quently has  a  present  right  of  possession,  even  before  con- 
dition broken,  yet  the  right  of  the  mortgagor,  as  against  all 
others,  will  entitle  him  to  maintain  a  suit  for  partition  against 
others ;  although,  in  such  case,  the  mortgagee  is  not  a  proper 
party,  ((')  which  disability  extends  so  far  that  if  one  tenant  in 
common  becomes  assignee  of  a  mortgage  on  the  lands,  his 
co-tenants,  who  derive  their  title  as  heirs  at  law  of  the  mort- 
gagor, cannot  maintain  a  petition  for  partition  against  him, 
even  if  the  mortgage  and  assignment  are  not  recorded. (/) 
On  the  principle  that  a  p;-esent  right  of  possession  is  essential, 
one  who  has  title  only  under  a  deed  which  reserves  to  the 
grantor,  who  is  still  living,  the  use  and  occupation  of  the 
premises  during  his  life,  cannot  have  partition. (.7) 

v}  633.  As  to  parties,  in  (/cncral,  these  should  be  all  parties 
in  being  having  a  present  estate  or  right  in  the  lands,  or  a 
future   interest,  and  whether  vested  or   contingent.     While 

(2)All)f'rf;oUi(;  w  Cliaplii).  Id  llicli.  ((/jSuldcn    v.   Vennily.'i,    2    Saiidf. 

Eq.  42H.  .')(;«. 

(a)Rozier  v.  Gridith,  :',l  Mo.   171.  (cjlMillcr  «.  Unidlev,  2:1  Pick.  9. 

(6)Hozier  v.  .Tohnson,  :]:,  Mo.  ;52ti.  (//Hlodgctt  v.  IlildicUi,  8  Allen, 

(c)Wommiick  v.  'Whitniore,  58  Mo.  18C. 

448.  ((7)Niehols  v.  Nichols,  28  Vt.  228. 


616  POWER    OF    COURTS    OF    EQUITY    TO    SELL    LANDS. 

a  complamanf  must  have  a  present  right  of  possession,  as 
above  explained,  yet  all  interests  of  persons  in  being  shoukl 
be  brought  before  the  court,  in  order  that  full  equity  may  be 
established,  in  view  of  all  equitable  rights  in  the  matter,  and 
then  the  decree  is  conclusive  of  the  rights  of  all,  and  a  sale 
will  bar  the  future  contingent  interests  of  persons  not  in  esse 
at  the  time,  even  though  no  notice  is  published  to  bring  in 
unknown  parties,  and  although  such  future  owners  may  take 
as  purchasers  under  a  deed  or  will,  and  not  as  claimants 
under  any  of  the  parties  to  the  action.  (/<)  There  is  a  distinc- 
tion in  this  matter,  as  above  intimated,  between  plaintiffs 
and  defendants,  for,  although  remainder-men  and  reversion- 
ers may  and  should  be  made  defendants,  they  cannot  institute 
proceedings,  at  least  against  others  not  seized  of  a  like  estate 
in  common  with  them.  The  right  is  only  given,  as  we  have 
already  considered,  to  one  having  actual  or  constructive  pos- 
session, which  a  remainder-man  has  not,  during  th«  continu- 
ance of  the  intervening  estate. (i)  A  purchaser  of  a  homestead 
rujht,  surrendered  b}^  deed  of  a  husband  and  wife  to  him,  may 
maintain  a  suit  for  partition  against  others  holding  with  him 
title  in  the  tract  of  which  the  homestead  was  an  undivided 
part  before  the  sale  to  him.  The  homestead  right,  as  to  its 
peculiar  nature,  is,  of  course,  annulled  by  the  transfer,  and 
the  purchaser  holds  the  fee.(j)  And  so  heirs  of  one  tenant 
in  common  may  maintain  a  suit  for  partition  jointly  with 
the  survivors,  all  deriving  title  from  a  common  source. (A-) 

As  in  other  cases,  non-resident  defendants  may  be  brought 
before  the  court  by  means  of  statutory  notice. (Z) 

Neither  the  administrator  of  an  estate,  nor  a  creditor 
thereof,  is  a  necessary  party,  even  in  a  state  where  partition 
is  allowed  before  a  settlement  of  the  estate,  and  even  if  the 
personal  property  is  insufficient  to  pay  the  debts.  In  such 
case  the  partition  is  made  subject  to  the  claims  of  the  cred- 
itors of  the  estate,  and  to  the  right  of  the  administrator  to 

fA)Brevoort  v.  Brevoort,  70  N.  Y.  (t) Sullivan t).  Sullivan,  66 N".  Y.  37. 

13(;i;    Kester   v.  Stark,  19   111.  328;  (/)Ferguson  «.  Reed,  45  Tex.  575. 

Whitman  ».  Reese,  59  Ala.  532.  (A;)Tindal  v.  Drake,  51  Ala.  574. 

(OPlatt  V.  Stewart,  10  Midi.  260. 


POWER    OF    COURTS    OF    EQUITY    TO    SELL    LANDS.  017 

-appl}'  for  leave  to  sell  the  lands  for  the  payment  of  the 
debts.  (?«) 

Where  a  statute  does  not  permit  a  disinheritance  of  any 
lawful  heir,  if  a  child  be  omitted  from  a  will  he  may  bring 
an  action  for  partition,  in  order  to  have  a  proper  share  as- 
signed him-f/i") 

In  North  Carolina  it  is  hekl  that  a  midow  entitled  to  dower 
is  a  necessary  party  to  partition  proceedings. (o)  But  it  is 
otherwise  decided  in  Kliode  Island,  on  the  ground  that  dower 
before  assignment  is  not  an  estate,  but  a  mere  right,  (p)  In 
Mississippi  a  widow  may  institute  partition  proceedings  in 
order  to  have  her  dower  assigned,  (r/) 

Where  parties  holding  a  lien  on  any  of  the  undivided  in- 
terests, such  as  a  mortgage,  are  made  party  defendants,  they 
will  be  bound  by  the  decree  of  j^artition,  and  will  be  limited 
in  their  claims  to  the  share  set  off  in  severalty  to  the  party 
under  whom  they  claim, (r) 

Where  one  of  the  parties  hecomcH  a  haiilcrii.pt,  daring  the 
jiroceedings,  the  partition  is  not  thereby  prevented ;  but 
the  assignee  merely  takes  subject. to  the  right  of  the  other 
parties.  (.9) 

§  034.  In  regard  to  infant 'parties,  we  remark  that  minors  may 
be  either  plaintitfs(Y)  or  defendants  in  j)arfcition  proceedings. 
If  defendants,  they  must  be  brought  before  the  court  in  the 
manner  prescribed  by  statute. (it)  And  they  may  be  plaintiffs 
jointly,  in  an  ex  parte  proceeding,  either  with  adults  or  where 
all  are  minors ;(f)  and  so  plaintiffs  and  defendants  may  all 
be  minors. (/r)  As  to  parties  woi  i)i  esne  they  are  represented 
"by  those  who  take  subject  to  their  rights. (x) 

An  infant  cannot  be  brought  before  the  court  by  means  of 

(m)Speor  v.  Speer,  14  JST.  .J.   Eq.  (<)WaiigIj.  «..  JJlumeiithal,  28  Mo. 

240.  463;  Tliomton  v.  Thornton,  27  Mo. 

(n)Ga<2:c».  Ga.^c,  (t  Fost.  r,Xi.  302;  Burks  ».  Burks,  7  Bax.  (Tenn.) 

(o)Gregor3'  v.   Grcii;(ny,  01*  N.  C.  35.'). 

522.  (M)Ni(;liol.s  r.  MilclicU,  70  111.  2.i8. 

(p)Hox.sie  «.  Ellis,  4  K.  I.  123.  (■«)L:xrned  v.  Kcnshaw,  37  Mo.  4.58. 

(jjHill  ».  Gregory,  56  Miss.  .341.  (y,c)Wilson   v.    Duncan,   44   Misii. 

(r)Milli^an  v.  Poole,  35  Ind.  68.  648. 

.(8)Baum  V.  Htern,  1   Ilicli.  (S.  C.)  (.?;)Rf'inders    v.    Koppclmann,    08 

•415.  ]\Io.  4S2. 


(il8     POWER  OF  COURTS  OF  EQUITY  TO  SELL  LANDS. 

the  entering  of  an  appearance  for  them  by  a  guardian  ad 
Jitcni  in  a  partition  proceeding.  There  must  be  a  statutory- 
service  ;  and  if  there  is  not,  the  whole  proceeding  is  void  as 
to  them,(?/)  and  they  will  have  a  right  to  disaffirm  on  arriv- 
ing at  full  age,  althor.gh  they  may  estoxD  themselves  from  doing 
so  if  they  receive,  on  settlement  with  their  guardian,  the 
proceeds  of  the  partition  sale.(^) 

§  635.  It  is  held  that  duplicity,  or  what  is  called  in  equity 
multifariousness,  will  not  be  allowed  in  partition  suits  any 
more  than  in  other  suits.  Thus,  where  one  is  a  tenant  in 
common  of  two  parcels  of  land  in  different  proportions, — of 
one  as  co-tenant  with  one  j)erson,  and  of  the  other  as  co-ten- 
ant with  the  same  persons  and  others, — he  cannot  have  a  de- 
cree for  partition  of  both  in  one  proceeding,  (a)  Division  cannot 
be  made  of  two  tracts  of  land  by  means  of  one  suit,  miless  the}' 
are  owned  throughout  by  the  same  persons. (6)  But  lands 
jointl}^  owned  in  tiro  or  more  counties  may  be  partitioned  in  the 
same  proceeding,  (c) 

§  636.  Where  lands  cannot  be  equitably  partitioned,  it  is 
competent  for  the  court  to  order  a  sale  in  order  to  make  an 
equitable  division  of  the  proceeds.(fZ)  However,  in  Louisiana, 
if  some  of  the  parties  are  minors,  the  statute  requires  the 
consent  of  the  family  to  sell  on  terms  of  credit. (e)  Usually, 
I  suppose,  the  sale  in  partition  should  be  for  cash,  where  a 
decent  price  can  be  thus  obtained.  In  Alabama,  a  sale  can- 
not be  made  at  all  without  consent  of  the  parties.  If  the 
premises  are  not  susceptible  of  an  exact  division,  the}^  may 
be  divided  into  unequal  shares,  and  compensation  allotted 
from  one  to  another(/) — a  system  which  I  think  might  impose 
much  hardship  in  special  cases.  Yet  a  sale  in  partition  is 
not  to  be  considered  in  any  instance  as  in  inritum,  like  a  sher- 
iff's sale  on  execution  ;(^(,')  nor  as  divestimi  title,  hwi  rather  as 

(^) Chambers  v.  .Jonos,  72  111.  27i3.  (f)Daniels  v.  Moses,  12  S.  C.  130. 

(2) Walker  t).  Mulveaii,  Tli  111.  IS;  (d)Higginbottom ». Short, 25 Miss. 

Corwia  v.  Shoup,  76  111.  24(i.  160. 

(ry)Hnnnewell  ».  Taj'lor,  3  Gray,  (e)Morgans    Succession.    12    Lu. 

111.  An.  153. 

(//jKitchen    v.    Sheets,    1    Carter,  (/)01iver  u.  Jernigan.  46  Ala.  41. 

(hid.)  138.  (5»)Packniau  v.  .Meatt,  4!t  Mo.  34;i. 


POWER  OF  COURTS  OF  EQUITY  TO  SELL  LANDS.     619 

defining  it,  and  dissolving  the  tenancy  in  common. (/i)  The 
proceeding  dissolves  the  unity  before  existing,  so  as  to  enable 
each  owner  to  have,  possess,  and  enjo}',  in  severalty,  his  own 
share  of  the  estate  under  his  original  title. (?)  And,  so  far  as 
infants  are  concerned,  the  proceeds  of  a  sale  retain  the  char- 
acter of  real  estate  for  the  purpose  of  succession,  until  they 
vest  in  some  one  who  has  capacity  to  change  the  nature  of 
the  estate,  and  give  it  the  character  of  jiersonalty;  unless, 
indeed,  the  law  of  the  place  prescribes  diiferently;  in  which 
case  they  will  be  regarded  elsewhere  as  personalty. (.;') 

Where  necessary,  the  action  of  the  court  is  to  order  a  sale 
and  distribution.  And  it  is  necessary  where  the  estate  can- 
not be  divided  without  injury.  A  case  came  to  the  United 
States  supreme  court,  from  California,  involving  a  hotel  and 
the  land  on  which  the  celebrated  big  trees  of  Calaveras  stand. 
The  court  said  therein:  "These  trees  are  ranked  among  the 
curiosities  of  the  world.  One  of  them,  as  the  evidence  shows, 
was  twenty-five  feet  in  diameter  when  it  was  cut  down,  and 
took  five  men  twenty-two  days  to  cut  it  down.  Others 
still  standing  are  thirty  feet  in  diameter.  The  place  ia 
visited  by  people  from  all  parts  of  the  world,  to  see  these 
trees  ;  and  the  hotel  did  a  profitable  business  for  this  reason. 
It  is  apparent  that  the  joint  ownershij)  of  this  property  must 
make  it  far  more  vahiable  than  it  would  be  if  s})lit  up  inta 
small  pieces,  held  by  persons  who  would  be  rivals  for  the 
profits  arising  from  visitors,"  and  it  was  lield,  therefore,  not 
susceptible  of  division. (/.)  Where  a  sale  is  made  the  court 
has  jurisdiction  for  the  distribution  of  the  proceeds ;(/)  and 
will  order  a  sale  when  this  is  advantageous  to  all  the  par- 
ties. (/«) 

Preliminary  to  a  sale,  it  is,  perhaps,  generally  requisite  to 
appoint  commissioners  to  report  on  the  feasibility  of  making 

(/()llarl:in  v.  L;m,ii'h:iin,  (jl)  Pa.  Hi.  (/) bridges  «.  Sperrv,  Hf)  U.  S.  40(1. 

2:>,r,.  (/)IIalslCiid  V.  Ilalstcad,  5r)   N.  V. 

(/jTablor  ».  Wiseman,  2  Ohio  St.  442. 

2()S.  (m)Graiiaiii   w.  Graliam,  S  Bush, 

(^■)Oberle   ».   Lurch,  li  Green   ('h.  334;    Metcalf  «>.  Iloopingardner,  4.'> 

346.     To  Uie  same  etlei.t  see  Horlon  la.  .510. 
V.  McCleary,  47N.  Y.  21. 


620  POWER    OF    COURTS    OF    EQUITY    TO    SELL    LANDS. 

a  division.  In  some  states  this  is  so  imperative  that  a  sale 
is  void  without  it,  and  it  cannot  be  done  after  the  sale  is 
made,  so  as  to  support  the  sale  by  showing  its  necessity. («) 

§  G37.  The  work  of  partition  should  be  thorough,  extending 
to  the  entire  tract,  and  one  tenant  in  common  cannot  prop- 
erh'  be  allowed  to  have  partition  of  only  a  part  of  the  com- 
mon property,  and  have  his  entire  interest  located  in  that 
part.(o)  Yet,  if  it  appears  during  the  proceeding  that  the  par- 
ties are  only  tenants  in  common  of  a  part  of  the  tract  de- 
scribed in  the  petition,  the  court  may  make  partition  of  that 
part.(2J)  And,  also,  petitioners  may  elect  to  consider  their 
share  as  an  undivided  part,  and  thus  have  partition  from  the 
other  tenants  in  common  made  defendants,  and  thus  con- 
tinue joint  tenants  among  themselves. (fj-) 

§  638.  The  foregoing  may  suffice  as  an  outline  exjilanation 
of  jurisdiction  in  matters  of  partition.  We  proceed  to  con- 
sider other  phases  of  the  power  of  equity  in  making  sales  of 
land.  And,  throughout,  the  principle  prevails  that  all  per- 
sons with  vested  rights  of  any  kind  must  be  made  parties  to 
the  proceedings,  or  otherw^ise  the  decree  will  not  bind  them. 
And,  although  equity — or  perhaps  it  would  be  more  proper  to 
say  because  equity — is  regarded  as  having  especial  charge  of 
infants  and  their  property,  there  is  no  inherent  power  to  make 
sales  of  their  lands  for  purposes  of  re-investment,  merely  on 
the  judgment  of  the  .court  that  their  interests  will  be  thereby 
promoted.  The  power  must  be  derived  from  statute,  and 
must  be  strictly  pursued,  and  the  infants  concerned  must  be 
made  parties  to  all  proceedings  for  the  disposition  of  their 
interests. 

It  is  true  that,  as  intimated,  a  court  of  equity  has  a  pro- 
tective jurisdictioii,  which  must,  in  the  proper  mode,  "be  brought 
into  activity  and  life  whenever  non-action  would  result  in  the 
loss  and  destruction  of  the  infant's  estate.  And  if  there  be 
no  guardian,  the  court  must  act  without  a  guardian  in  all 
cases  where  the  act  required  to  be  done  is  such  that  it  can 

(w)Denning  v.   Clark,  59  111.  218.  (j9)Baldwiu  v.  Aldricb,  34  Vt.  52G. 

(o)Sutter  V.  San  Francisco,  36  Cal.  (g)Ladd  v.  Perley,  18  N.  H.  390. 

113. 


POWER    OF    COURTS    OF    EQUITY   TO    SELL    LANDS.  (')21 

be  performed  with  fidelity  and  proper  care  by  the  ordinary 
machinery  of  the  court.  No  one  may  be  wi-lling  to  qualify  as 
guardian.  The  court  has  no  power  to  enforce  the  acceptance 
of  that  trust  by  any  one;  but  it  has  masters  and  commis- 
sioners amenable  to  it,  and  when  the  act  to  be  done  for  the 
protection  of  the  infants  can  be  done  by  one  of  these  officers, 
the  court  cannot  refuse  to  act  for  the  reason  alone  that  there 
is  no  guardian."  So  remarked  the  Mississippi  court,  in  a  case 
where  land  held  in  trust  for  infants  was  sold  for  taxes,  and 
they,  having  no  guardian,  applied  to  the  court  for  the  right  to 
redeem,  by  having  a  part  of  the  land  itself  sold  and  the  pro- 
ceeds applied  to  this  purpose — they  having  no  other  property 
with  which  to  redeem.  And  the  court  went  on  to  say  further  : 
"The  facts  stated  in  the  bill  present  a  strong  claim  for  the 
interposition  of  a  court  of  equity.  Under  the  statutes  as  they 
existed  at  the  time  the  sale  for  taxes  was  made,  the  appellants 
were  entitled  to  redeem  their  land  at  any  time  before  the  ex- 
piration of  one  year  after  they  attained  their  majority.  In 
the  meantime — that  is,  during  the  period  intervening  the 
lapse  of  two  years  from  the  date  of  the  sale  and  the  time 
they  should  redeem,  or  validly  offer  to  redeem  —  they  were 
not  entitled  to  any  rents  or  profits  of  the  land,  and  were  lia- 
ble, when  they  came  to  redeem,  for  any  valuable  imjjrove- 
ments  made  on  the  land  by  the  purchaser.  They  were  witiiout 
any  other  property,  and  were  consequently  unable,  as  they 
allege,  to  redeem,  except  through  the  means  to  be  derived 
from  the  land.  As  the  case  stood  at  the  filing  of  the  bill, 
they  could  derive  nothing  from  the  land  in  the  way  of  rents; 
and,  necessarily,  a  resort  must  be  had  to  a  sale  of  a  portion 
of  it  in  order  to  save  the  remainder.  If  they  had  been  adults, 
they  could  have  sold  the  land,  or  any  portion  of  it,  during  the 
time  they  were  allowed  to  redeem,  and  applicid  tlie  proceeds 
to  that  purpose.  Being  incapable,  from  their  infancy,  of 
making  a  sale,  and  having  no  guardian  who  cuuld  make  appli- 
cation to  the  court  for  a  sale,  it  must  result  that  they  could 
apply  themselves,  through  their  next  friend;  or  we  must  con- 
clude that,  being  entitled  to  a  valuable  estate,  they  are  com- 


<)22  POWER    OF    COURTS    OF    EQUITY    TO    SELL    LANDS. 

pelled,  by  some  inexorable  rule  of  law,  to  suffer  in  want  and 
povert}',  and  allow  the  whole  of  their  estate,  by  lapse  of  time, 
to  be  lost  to  them,  forever  from  an  incapacit}'  on  the  part  of 
any  court  to  permit  their  parting  with  their  claim  to  a  por- 
tion of  it  as  a  necessary  means  of  saving  the  remainder.  The 
control  of  infants  and  their  property  constituted  one  of  the 
original  subjects  of  the  jurisdiction  of  the  chancery  court  ;"(>) 
that  is,  protective  jurisdiction. 

And  the  Arkansas  court  remark:  "The  general  jurisdic- 
tion over  the  persons  and  property  of  minors  belongs  to  the 
chancery  courts.  It  is  a  very  high  trust,  involving  the  most 
delicate  and  important  interests  of  a  helpless  class,  which  is 
peculiarly  the  subject  of  the  jealous  and  watchful  care  of 
■chancer}-,  and  which  is  peculiarly  liable  to  injury  from  the 
greed  of  crafty  men  and  the  carelessness  of  relations. "(.s) 

It  is  even  intimated,  l)y  the  New  York  supreme  court,  that  a 
court  has  the  power,  and  that  it  is  the  duty  of  the  court,  to 
exercise  it  and  interpose  in  behalf  of  an  infant  partj",  witJiout 
his  application,  in  order  to  prevent  a  sacrifice  of  his  property 
in  a  sale  wliicli  has  taken  place,  and  to  direct  a  resale  ;(fj 
which  is  certainly  correct  in  principle.  For,  in  all  cases 
of  the  sale  of  real  estate  belonging  to  minors,  for  purposes 
of  re -investment  and  the  like,  the  court  is  bound  to  see 
that  the  minors"  interests  are  thereb}-  promoted. (w)  And, 
for  this  purpose,  all  sales  under  decree  are  subject  to  the 
£uper\Tision  of  the  court. (r)  Indeed,  the  court  is  held  to  be 
the  vendor,  and  so  will  confirm  or  reject  the  sale  as  the  law 
or  justice  of  the  case  may  require.  («■)  The  commissioner 
making  the  sale  is  merely  the  agent  of  the  court. (a;)  In  North 
Carolina  it  is  held  that,  where  a  public  sale  results  unsatis- 
factorily, the  court  has  power  to  confirm  a  private  sale  after- 

(r).Iolin«  I'.  Smith.   56  jMiss.  731,  [u) Ex  parte  Sew fi\:X,\<o  A\&.  A]0. 

732,  passim.  (f;)Coflfey  v.  Cott'ej-,  16  111.  144,  and 

(.•<)Myrick  v.  .Tacks,  33  Ark.  428.  ca.ses  cited. 

And  see  Lee  v.  Lee,  55  Ala.  590,  for  (jr)Thomason    v.    Craighead,    3'2 

a  lull  explanation  of  this  matter.  Ark. 

(Of-cfevre    r.   [.araAvnj,    22  Biirb.  (a-jParratt  «.  Noligh.  7  Xi;l>.  45(;. 
3  7(i. 


POWER    OF    COURTS    OF    EQUITY    TO    SELL    LANDS.  62'> 

wards  on  an  advantageous  offer  for  infants'  lands. (,^)      See 
§  626,  supra,  and  §§  639,  641,  infra. 

§  639.  Not  only,  as  above  stated,  may  sales  be  ordered 
<it  the  instance  of  infants,  for  their  benefit,  but  they  may  be 
made  defendants  in  proceedings  to  sell  lands,  in  whicdi  they 
are  interested.  This  is  the  power  which,  I  have  already 
remarked,  is  subject  to  close  restriction,  and  only  exists  by 
statutory  regulations,  which  must  be  strictly  pursued.  And 
so,  in  Maine,  though  a  suit  may  proceed  against  an  infant 
defending  by  his  guardian,  yet  no  decree  for  the  conveyance 
of  real  estate  will  be  made  against  him  till  he  comes  of 
age(^)  And  an  infant  trustee,  holding  the  legal  title  and  hav- 
ing also  an  interest  in  the  trust  estate,  is  entitled  to  a  day 
after  attaining  his  majority  to  answer. («)  It  is  held,  in  Ken- 
tucky, that  where  real  estate  is  sold,  and  the  proceeds  are  to 
be  placed  in  the  hands  »f  guardians,  a  more  rigid  comj)liance 
with  the  statutory  requirements  will  be  exacted  than  when  a 
sale  is  made  for  the  purpose  of  re-investing  the  proceeds  in 
other  real  estate ;  that  is,  where  the  infants  are  remainder- 
men.(7>)  And  such  sale  may  be  had  of  the  land  when  held 
in  trust,  at  the  instance  of  the  tiustee;(/?)  and  without  any 
report  from  commissioners  ;(<'/)  and  the  entire  proceeding 
being  conformable,  substantially,  to  all  the  statutory  re- 
quirements, the  trust  estate  may  be  re-invested  on  the  same 
trusts,  so  as  to  be  binding  on  the  living  and  the  unborn 
heirs. (>)  It  is  the  duty  of  the  chancellor,  before  he  can 
adjudge  a  sale,  to  be  satisfied  that  the  interest  of  the  parties 
requires  a  sale  to  be  made,  and  then  to  see  that  the  re-invest- 
ment is  properly  effected. (./)  And  the  notice  must  be  in  pur- 
suance to  the  power  to  sell,  substantially. ((;)  See  §  638, 
supra,  and  reference. 

(.y)]{o\v]and  ♦>.  Thompson,  1?>  N.  (fjOrmshy  «.  Terry,  6  Bush,  ^nA. 

C  .^04.  In  North  Carolina  it  has  been  lield 

(z)Perry  v.  Perry,  65  Me.  390.  that  per.sons  not m('S.>(earenot  Ixuuid 

(a)McLellan  v.  McLelhm.  G5  Me.  when  the  estate  in  remainder  is  liiu- 

.500.  ited  to  them.     Watson  «.  "Watson,  3 

(6)Paul  ».  Paul,  3  Bush,  483.  Jones'  Eq.  400. 

(c) Allen  V.  Graves,  3  Bush,  492.  (/jEwin.i;  r.  Kiddle,  S  Bush,  Tu.i. 

(d)Grimth  v.  Burton,  :VBusli,  ?,:>9>.  (^/jCcfer  v.  Miller,  7  Bu.<h,  r>4<i. 


r)24     POWER  OP  COURTS  OP  EQUITY  TO  SELL  LANDS. 

§  640.  Ill  New  York  it  has  been  held  that  expectant  estates 
and  estates  in  remainder  cannot  be  sold  under  the  statute ;  a 
sale  can  only  be  ordered  in  those  cases  in  which  the  infant  is  in 
the  actual  possession  of  the  land,  or  entitled  to  the  immedi- 
ate possession  of  it.  The  supreme  court  say:  "The  word 
'  seizin'  was  used  designedly  by  the  legislature  for  the  purpose 
of  preventing  such  applications.  The  statute  was  only  in- 
tended to  be  used  in  a  case  where  the  infant  was  eitlier  iii 
the  actual  possession  of  the  land,  or  entitled  to  immediate 
possession,  so  that  possession  could  be  given  to  the  purchaser 
at  once,  on  the  sale  being  made.  If  the  expectant  estates  of 
infants  could  be  sold  under  the  statute,  the  practice  would  be 
liable  to  very  great  abuse,  and  their  property  would  be  liable 
to  be  sacrificed  to  the  interests  of  life  tenants,  who,  in  many 
instances,  have  them  under  absolute  control,  "(/t)  Usually, 
liowever,  an  infant's  reversionary  estate  may  be  sold,  but 
only  where  it  is  for  the  interest  of  the  infant  to  have  the  sale 
made.(i)  And  the  reason  is  that  an  estate  in  remainder  is 
considered  as  vested  when  there  is  a  person  in  being  who 
would  have  an  immediate  right  to  the  possession  upon  the 
ceasing  of  the  intermediate  particular  estate ;  and  it  is  never 
to  be  held  contingent  when  it  can  consistently  be  held 
vested,  (j)  A  remainder  is  vested  where  there  is  a  present^ 
lixed  right  of  future  enjoyment; (A;)  so  that  the  interests  of  a 
remainder-man  may  be  brought  before  the  court  to  be  passed 
upon;  as,  for  example,  a  remainder-man  may  bring  an  ac- 
tion to  clear  title. (7)     See  §  638,  supra,  and  reference. 

§  641.  In  all  proceedings  involving  the  interests  of  remain- 
der-men, whether  infants  or  adults,  tliese  must  be  made  parties 
to  the  action,  or  they  cannot  be  bound  thereby,  although  it  is 
held  that  the  interests  of  mihorn  contingent  remainder-men,  or 
of  non-resident  unknown  contingent  remainder-men,  may  be 
barred  without  their  being  made  parties. («t)     And  where  au 

(/.').Tenkins    v.    Fahey,     11    Hun.  (^)Weeliawken  Ferry  Co.  v.  Sis- 

.3.^4.  son,  17  N.  J.  Eq.  475. 

(«)IIeaton's  Case,    21   N.    J.   Eq.  (Z)Scliori  «.  Stephens,  62  Ind.  441. 

221.  (/«)Bofil  V.  Fisher,  3  Kich.  Eq.  (S. 

(j)Croxall  «.  Sherard,  5  Wall.  269.  C.)  1. 


POWEE    OP    COURTS    OF    EQUITY    TO    SELL    LANDS.  025 

estate  is  held  in  trust,  both  the  trustee  and  the  infant  cestui 
que  tru-^t  must  be  parties. (/?)  And  if  the  trustee  is  a  minor, 
he  is  still  a  necessary  party,  and  the  action  cannot  be  main- 
tained against  his  guardian  alone,  (o)  And,  especially,  infants 
millet  be  made  parties  to  bills  in  equity  affecting  their  title  to 
real  estate;  and  making  their  guardians  parties  is  never  suffi- 
cient. (j9)  Nor  can  a  guardian  ad  litem  enter  an  appearance 
for  an  infant  ;((7)  although  it  is  the  duty  of  a  court  to  appoint 
a  guardian  ad  litem  for  infant  defendants,  whether  the  plaintiff" 
does  or  does  not  apply  for  it  to  be  done.(r)  See  §  638,  supra, 
and  reference.  A  tenant  for  life  is  not  a  sufficient  party 
to  represent  the  estate,  except  in  cases  of  partition  merely,  or 
where  the  object  of  the  suit  is  to  collect  debts,  or  enforce  a 
charge  on  the  land.(s) 

§  642.  Until  co;i/i/vna^ta;t  by  the  court,  a  purchaser  is  usually 
regarded  merely  as  a  preferred  bidder;  and  whether  his  bid 
will  be  accepted  or  not  depends  on  the  sound,  equitable  dis- 
cretion of  the  court  which  has  control  of  the  cause,  (f)  He 
buys  subject  to  the  final  order  of  the  court. («)  He  may  him- 
self have  relief  from  his  bid  on  proper  grounds,  as  the  dis- 
covery of  a  defect  of  title  ;(/•)  although  a  sale  will  not  be 
vacated  for  causes  resulting  from  a  party's  own  default. (?f) 

Where  confirmation  has  taken  place,  the  sale  will  not  be 
set  aside  merely  because  there  has  been  a  higher  j)rice  offered 
since  the  sale,  because,  by  the  confirmation,  the  bargain  is 
closed  ;(.r)  although  it  does  not  ipso  facto  vest  the  legal  title. 
This  is  done  by  the  deed,  and  the  deed  may  be  withheld  until 
all  deferred  payments  are  made.(2/) 

(«)0'Hara  v.  ManConiiell,  93  U.  (^Taylor  v.  Gilpin,  ?,  3Iet.  (Ky.) 

S.  150;  Parks  v.  Fry,  2  Bush,  43s.  544. 

(t»)Wakefi(!ld     n.    Marr,    65    Me.  (//)[. upton  o.  Almy,  4  Wis.  261; 

341.  Coffey   «.   Coffey,  16   111.    144,   and 

(p)Tu{;kcr  v.  Beau,  65  Me.  352.  cases  cited. 

(7)(^hambers    v.    Jones,     72     111.  (w)Bolgiano     ft.    Cooke,    l!t    Md. 

275.  375. 

(r)lt.  11.  V.  Bowler's  Heirs, !»  Bush,  (i'/-)Bank  v.  Clarke,  28  Md.  145. 

470.  (.r)IIouston  v.  Aycock,  5   Sneed, 

(s)D()\vnin    «.    Sprecher,    35    Md.  413. 

481.  fy)Webster  «.  Hill,  3  Sueed,  333. 
v.l— 40 


626  POWEE    OF    COURTS    OF    EQUITY    TO    SELL    LANDS. 

§  643,  A  resale  will  be  ordered  on  account  of  fraud,  or 
misconduct  in  the  purchaser;  or  negligence  or  misconduct  of 
other  persons  connected  with  the  sale ;  or  surprise  or  misap- 
prehension created  by  the  conduct  of  the  purchaser,  or  officer, 
or  other  person  interested  in  the  sale ;  or,  in  the  case  of  infants, 
where  their  property  has  been  sacrificed  at  the  sale  wilfully, 
negligently,  or  mistakenly. (^■)  The  court  acts  for  all  parties, 
however,  and  will  use  its  power  to  prevent  injustice  towards 
purchasers  or  owners,(a)  where  sufficient  grounds  exist  for  its 
interposition. 

(^)Leiev]e  v.  Larawaj,  22  Barb.  (a)Kauffman    v.   "Walker,   9  ild. 

168.  229. 


INDEX. 


ABSENCE.     See  Attachment. 
ACTING 

witliout  jurisdiction,  §  lo  ft  seq.,  p.  10  et  seq. 
ACCOUNT.     See  Admiralty  ;  Equity. 
ACTIONS  IN  PERSONAM.     See  Real  Estate. 
ADJOURNMENT.     See  Tekms  of  Couiits. 

ADMINISTRATION.     See  Cofrts  of  Probate  :  Equity  :  Erat.  Estate. 
ADMINISTRATOR. 

only  amenable  in  common-law  courts  by  statute,  «  71,  p.  59. 
See  Attachment  ;  Courts  op  Prorate. 
ADMIRALTY. 

tide-waters — juri.sdiction  in,  §  113,  p.  107. 

jurisdiction  of  a  state  over  boats  in  navigable  Avalers,  §  147,  p.  137. 

jurisdiction  explained,  §  241,  p.  251. 

Engli-b  rules  and  legislation,  §  242,  p.  257. 

extension  of  locality,  §  243,  p.  257. 

proceedings  in  rein  and  in  personam,  ^  244.  p.  257.     (Sec  below.) 

wliai  is  reciuisite  to  proceedings  in  rem,  §  245,  p.  259. 

United  Slates  and  state  courts,  ^  246,  p.  25H. 

Iireacli  of  contract  to  carry  passenger,  §  24(;,  p.  259. 

foreclosing  mortgage,  H  246,  251,  pp.  260,  264.  265. 

supi)lies  and  labor,  jj  246,  253,  pp.  259,  260,  266,  267. 

seaman"s  wages,  ^  247,  p.  260.     (See  below.) 

torts,  ji  ^47,262,  263,  pp.  260,  272,  275. 

repairs,  §§  247,  252,  pp.  260,  266. 

(■onjoint  jiroceeding  in  rem  and  in  personam,  §  24^.  p.  260.    (See  above.) 

adjudication  in  matters  of  contract,  ^  249,  p.  260. 

partnership  in  vessel,  §j  249,  250,  pp.  261,  262. 

questions  of  property  between  mortgagor  and  mortgagee,  j  250,  p 
262.     (See  above.) 

accountinsr,  §  250,  pp.  262,  263. 

title  to  slifps.  §  251,  pp.  263,  264. 

■contract  to  build  a  ship  or  furnish  materials,  §  252,  p.  2C6. 

refusal  to  receive  supplies,  ^  253,  p.  267. 

maritime  lien,  §  254,  p.  257. 

maritime  character  of  services,  4  254,  pp.  267,  268. 

pilotage,  j  254,  p.  267. 

wharfage,  «  254,  p.  26s. 

costs  of  advertising,  i  254,  p.  2GS. 

insurance,  i  255,  p.  269. 

respondentia  and  ijottomry  loans,  §  255,  p.  269. 

salvage,  *  256,  pp.  269-271. 

when  vessel  is  derelict,  §  256,  p.  270. 

what  are  vessels,  ^  256,  p.  271- 

(627) 


♦32S  INDEX. 

A  I) Ml  UALTY— Continued. 

seaman's  contract,  §  257,  p.  271.     (See  above.) 
transportation  contracts,  §  2.5s,  p.  271. 
lien  on  money  advanced,  §  259,  p.  271. 
suit  on  a  note,  §  2^0,  p.  271. 

distinction  between  vessel  and  cargo,  §  261,  p.  272. 
collision,  ?  262,  p.  272. 
violations  of  revenue  laws,  §  264,  p.  275. 
felonies,  §  265,  pp.  275,  276. 
piracy,  j  266,  p.  276. 

admiralty  as  to  foreigners,  §^  267,  269,  pp.  277-279,  281. 
prize  jurisdiction,  ^  268,  pp.  279-281. 
trust.s,  §  270,  p.  281. 
specific  performance,  §  270,  p.  2-'l. 
iSee  Common  Law. 

AFFIDAVIT.     See  Attachment. 
in  agreed  case,  §j  2,  66,  pp.  2,  48., 

AGE. 

as  a  qualification  for  the  office  of  judge,  §  164,  p.  158. 
See  Judges. 

AGREED  CASE. 

affidavit  of  good  faith,  §§  2,  60.  pp.  2,  48. 

AMENDMENT.     See  Ixctdenxal  J  ji!Isdictio:t. 

AMOUNT. 

limiting  jiu'isdicliou,  §  99,  p.  9.3. 

subjectto  the  rule  that  consent  cannot  confer  jurisdiction,  p.  48,  note*, 
i  107,  p.  101. 

method  of  computing,  §  100,  pp.  93,  102. 

belief  of  plaintiff,  p.  94,  note  (d.) 

liow  inquired  of,  p.  94.  note  (6),  j  107,  p.  102. 

unintentional  mistake,  H  100,   107,  pp.  95, 102. 

interest,  damages,  and  costs,  §  100,  p.  95. 

unbalanced  account,  §  101,  p.  95. 

payments,  §  101,  p.  96. 

remitting  excess,  *  102,  p.  96,  p.  102,  note. 

consolidation,  «  103,  pp.  96,  97. 

in  contempt  proceedings,  p.  97.  note  {n.) 

aggregated  claims  of  several  plaintitTs,  p.  97.  note  (s.) 

consolidation  of  separate  suits  before  different  justices,  §  103,  p.  9S. 

consolidation  in  cases  of  negligence,  j  103,  p.  99. 

in  ejectment,  ^  104,  p.  99  and  note 

actions  on  penal  bonds,  j  lu4,  pp.  99,  100. 

levy  in  attachment,  §  104,  p.  99. 

ad  damnum,,  §  105,  p.  100  and  note  t. 

crimes,  misdemeanors,  and  torts,  §  106,  p.  100. 

foreclosure  cases,  p.  100,  note  *. 

trespass  to  real  estate,  §  106,  p.  101.  • 

replevin,  §  106,  p.  lol. 

continuing  trespass,  ^  100,  p.  lol. 

cannot  he  waived,  i  107,  p.  101. 

effect  of  doubt  as  to  value,  «  107,  p.  101. 

defect  cannot  be  cured  bv  transfer.  *  107.  p.  102. 

set-offs,  §  108,  p.  102. 

aggregate  of  different  counts,  f  109,  p.  103. 

aggregate  amount  of  mortgage  on  foreclosure  does  not  determine, 
TllO,  p.  103. 

purchase  price  of  property  less  than  the  limitation  or  than  the  state- 
ment in  the  declaration,  §  110,  p.  103. 

proof  of  larger  amount  than  claimed,  and  above  the  jurisdiction,  §  111, 
p.  104. 


INDEX,  629 

APPEAL. 

does  not  confer  jurisdiction,  §  65,  p.  4G. 
must  be  as  prescribed  by  statute,  j  132,  p.  126. 
See  Presumptions. 
APPEARANCE. 

may  confer  personal  jurisdiction,  but  not  substantia],  §§  (jti,  St5,  pp. 

74  and  note  (-w).  7."). 
special,  does  not  give  jurisdiction  §  86,  p.  76. 
by  unauthorized  attorney  gives  jurisdiction,  §  SG,  p.  76. 
exception  as  to  corporations,  §  86,  p.  76. 
of  party,  a  waiver  of  service,  §  113,  p.  105,  note, 
non-resident — appearance  b}' attorney,  ^  113,  p.  Id.l,  note, 
when  authority  of  attorney  must  be  shown,  §  113,  p.  105,  note, 
in  suit  of  non-resident  against  non-resident,  §  114,  p.  109. 
for  what  purposes  appearance  ma}^  be  entered,  j  113,  p.  106,  note. 
(See  Servick  ;  Venue. 

APPOINTMENT. 

of  persons  by  a  court  without  jurisdiction,  §  16,  p.  11, 

APPORTIONING  ENCUMBRANCES.     See  Equity. 

ARBITRATION. 

consent  to  submit,  §  66,  p.  51. 

general  agreement  does  not  oust  the  jurisdiction  of  the  courts,  {  78, 
p.  64.^ 

See  chapter  lieadings  on  page  424. 

ATTACHMENT. 

statutory  basis,  §  530,  p.  512. 

exceptional  provisions,  §  530,  p.  513. 

parties — domicile,  i  531,  p.  514  and  note.     (See  below.) 

absence,  §§  531,  533,  pp.  515  and  note,  ;')16,  517,  51S. 

non-resident  becoming  resident  pending  proceedings,  §  531,  p.  517. 

on  joint  claims,  §  532,  p.  517. 

intention  to  avoid  service,  §  5.34,  p.  510. 

design  to  defraud,  §  534,  p.  51'J. 

absconding  or  concealing  one's  self,  §  536,  p.  520. 

two  places  of  residence — domicile,  §  537,  p.  521.     (See  above.) 

non-resident  creditor  may  attach,  «  53s,  p.  521. 

title  to  concealed  property,  §  54ti,  p.  522. 

attidavit  for  writ,  §§  541,  544,  pp.  522.  524.  .525,  note. 

corporations,  ^  542,  p.  52o. 

national  bank  a  foreign  corporation,  §  542,  p.  524. 

the  only  method  of  suing  a  foreign  corporation  in  state  court  ni  home, 

^  542,  p.  524. 
property  in  the  hands  of  an  administrator  or  executor,  j  543,  p.  524. 
a  lew  essential,  §  545,  p.  525. 
for  a" debt  not  due,  §  546,  p.  525. 

general  rule  as  to  kinds  of  property  liable,  §  547,  pp.  525,  526,  note, 
kinds  of  indebtedness,  pp.  525,  note,  526,  note, 
parties,  p.  526,  note.     (See  above.) 
notice,  p.  527,  note, 
death  of  party,  p.  527,  note. 

effect  of  bankruptcy  or  insolvency,  i>.  527,  note, 
nature  of  the  lien,  p.  527,  note, 
disqualification  of  judge,  p.  527,  note. 

See  CoM.Mox  L.\w ;  Courts  of  Probate. 

ATTORNEYS. 

authority  of  a  court  over,  §  177.  p.  173. 
See  Appe.\r.\nce. 

AWARDS.     See  Arbitrations;  Equity. 


630  INDEX. 

AXIOMS. 

as  to  declarations  of  juiisdiction,  ^  56,  p.  41. 

BANK  (NATICmAL.) 

a  foreign  corporation,  §  542,  p.  524. 
See  Attachment. 

BANKRUPTCY. 

jurisdiction  ousting  tliat  of  other  courts,  $  76,  p.  64. 

See  Attachment  ;  and  chapter  headings  on  page  340. 

BIAS.     See  Judges. 

BENEFITS.     See  Churches;  Voluntauy  Societies. 
of  clergy.     See  Common  Law. 

BILL  FOR  REVIEW.     See  Review. 

BOARD  OF  TRADE. 

force  of  regulations  of,  j  150,  p.  142. 

BOUNDARY. 

of  state  dellned  by  legislative  department,  §  44,  p.  108. 
wiien  controlled  by  the  course  of  a  stream — change,  §  120,  p.  116. 
See  National  Boundary;  Venue. 

BURDEN  OF  PROOF.     See  Notice. 

CANCELLATION.     See  Eyurrr. 

CAUSES  OF  ACTION. 
sev(M-ance  of,  p.  !>,  note. 

CERTIORARI. 

what  it  reaches,  §  65,  p.  46. 

See  Change  ov  Venue. 

CIIANC^ERY  COURTS.     See  Common  Law. 

CIlAN(iE  OF  VENUE. 

when  discretionary,  §§  122,  123,  127,  pp.  118,  note,  120,  122. 

cause — prejudice,  §  12o,  p.  119. 

transfer  of  cause,  §  122,  p.  118. 

when  want  of  jurisdiction' will  justify,  §  122,  p.  118. 

when  application  must  be  made,  §  1213,  p.  119. 

waiver  of  right,  ^  123,  p.  119. 

for  prejudice — who  must  apply,  §  123,  p.  120. 

indi(Mmeiit  not  changed  in  criminal  case,  §  123,  p.  120. 

i-cnidval  by  certiorari,  §  123,  p.  120. 

prosecuting  attorney  may  apply,  §  123,  p.  120,  note. 

in  contempt,  §  123,  p.  120. 

by  supreme  court,  §  124,  p.  121. 

cause  of  action  arising  in  another  count}',  §  124,  p.  121. 

convenience  of  witnesses,  >>  125,  p.  121. 

must  conform  to  statute,  ^  126,  p.  122. 

cause  must  be  actually  removed,  §  J 26,  p.  122. 

plenary  power  of  the  court  to  which  the  cause  is  removed  by  the 

change,  §  126,  p.  122. 
in  quo  warranto,  §  127,  p    123. 
l)y  legislation,  i  128,  p.  124. 
to  remote  county,  j  129,  p.  J 24. 
successive  removals,  §  12 J,  }>.  124.  * 

from  justice  of  the  peace  to  nearest  justice,  §  129,  p.  121. 
joint  defendants  must  unite  in  the  application,  ^  130,  p.  125. 
provisional  courts,  §  131,  p.  125, 

See  Common-Law  Courts. 


INDEX.  63] 

CHURCHES  AND  VOLUNTARY  SOCIETIES. 

general  jurisdiction  over,  §  148,  p.  139. 

by-laws  and  regulations  of  a  lodge,  §  14S),  p.  130 

of  a  board  of  trade,  §  150,  p.  141. 
of  churches,  §  152,  p.  142. 

forfeiture  of  property  in  a  church  by  seceding  members,  §  152,  p.  146. 

interference  with  church  officers,  §  153,  p.  146. 
CITIZENSHIP. 

non-residents  may  sue  non-residents  in  state  courts,  ^  114,  p.  108. 
CIVIL  WAR.     See  Habeas  Coupus;  Parties. 
CLAIMS  AGAINST  THE  GOVERNMENT.     See  chapter  headings  on 

iwge  353. 
CLASSIFICATION. 

of  jurisdictions,  §  7  et  seq.,  p.  7  et  seq. 
COMITY. 

as  to  cases  pending  and  undetermined,  $  60,  p.  44. 
COMMENCEMENT  OF  SUIT.     See  Date. 
COMMISSIONS.     See  Equity. 
COMMON  LAW. 

a  source  of  jurisdiction,  §  67,  p.  52. 

whence  derived,  >§  198,  p.  203. 

chief  basis  of  jurisprudence,  §  199,  p.  204. 

moditicatlons'thereof,  §§  200,  204,  205,  pp.  207,  211,  212. 

distinction  between  principles  and  rules,  ^  201,  p.  208 

standard  of  applicability,  §  202,  p.  209. 

common  law  of  this  country  specitied,  §  203,  p.  211. 

statute  remedy — when  cumulative,  ^  206,  p.  212. 

no  common  law  of  the  United  States,  ^  207,  p.  213. 

leading  iiecuiiarily — trial  by  jury,  ^  208,  p.  213. 

general  rule  for  determining,  ^  208,  p.  213. 

lex  lacrcd.toria,  §  208,  p.  213. 

benefit  of  clergy,  §  208,  j).  214. 

ecclesiastical  property,  §  208,  p.  214. 

divorces,  §  208,  p.  215. 

ecclesiastical  courts,  ^  208,  p.  215. 

chancery  and  admiralty  courts — concurrent  jurisdiction,  $  208,  p.  215. 

want  of  early  precedents  in  this  country,  effect,  §  209,  p.  216. 

exemplitications  of  pal)lic  grants,  §  210,  p.  216. 

powers  of  justices  of  the  peace,  §  210,  p.  217. 

survivor  in  trespass  continuing  suit,  §  210,  p.  217. 

law  concerning  accidental  tires,  ^  210,  p.  217. 

attachments,  \  210,  p.  217. 

impeachments,  §  2Ht.  p.  217 

remedies  in  United  States  courts,  §  212,  p.  218. 

crimes  and  misdemeanors,  §  213,  p.  21s. 

felonry  does  not  merge  a  private  wrong,  §  214,  p.  222. 

See  Co.M.\io>;-L.\w  Courts;  Courts;  Crimes;  and  see  chap- 
ter lieai lings  on  page  203. 
COMMON-LAW  COURTS. 

as  to  distributions,  §  71,  p.  53. 

new  courts  endowed  with  exclusive  jurisdiction,  >}  68,  p.  54. 

place  of  holding  court — cliaiige  in,  s^  121,  p.  117. 

See  ('uan(tK  of  Venue;    Co.m.mox   Law  Courts;    Courts; 
Statutes;  Terms;  Venue. 
CONCEALED  PROPEIiTY.     See  Attacument. 

CONCURRENT  .JURISI)I(!TION. 

of  federal  and  slate  courts  as  to  crimes,  §  113,  p.  100. 

over  process,  §  156,  p.  150. 

in  rem  proceedings,  4  156,  p.  150. 


632  INDEX. 

CONCUKllEM-  J  [JRISUICTION— Continued. 

law  ;ind  equity  jurisdiction  in  same  court,  §  157,  p.  150. 
concurrent  suits — wlicie  suit  is  prosecuted  in  two  courts  one  of  the 
actions  will  be  susiiended  until  the  determination  of  the  other, 
§  158,  p.  151. 
priority — rule  of,  exceptions,  §  159, p.  156 

See  CouKTs  of  Peobate  ;  Equity  ;  Exclusivk  and  Concuk- 

KENT   JUKISDICTION. 

CONFEDEIIATE  COUliTS.     See  Courts. 

CONSENT. 

may  give  personal  jurisdiction,  §  8(5,  p.  74. 
exception  as  to  corporations,  §  86,  p.  76. 

See  Courts  ok  Pkoijate. 
to  arbitration  allowed,  j  66,  p.  51. 
takes  away  error,  §  66,  p.  51. 
restores  jurisdiction,  when,  §  66,  p.  51. 

See  Amouxt;  Appe.\r.\nce  ;  Jurisdiction. 

CONSTITUTIONAL  LAAV. 

constitutionality  of  statutes  judicially  determined,  §§  6,  55,  pp.  3.  39. 

See  Justices  op  the  Peace;  Habe.\s  Corpus. 
meaning  of  phrase  '-until  otiierwise  provided  for,"'  §  68,  p.  54. 
right  of  trial  by  jury  guarantied  by  a  constitution  cannot  be  indirectly 

taken  away  by  iegisiutiou  an}-  more  than  directly,  §  68,  p.  54. 
nor  can  constitutional  equity  powers  be  taken  away  by  a  statute  re- 
quiring sulimission  to  a  jury,  §  (>'<,  p.  54. 
constifutitional  courts  not  aliolislied  or  altered  by  legislation.  ^  ii''^, 

p.  54. 
but  statutory  jurisdiction  mav  be  annexed  to  constitutioual,  §  6s, 

p.  55. 
statutor}'  courts  may  he  abolislied,  §  68,  p.  55. 
legislative  grant  not  subject  td  review,  §  68,  p.  55. 

For  Constitutional  Limitations,  see  chapter  headings  on  p.  33. 
See,  also,  Constructkjn  ;  Legisi.ature  ;  M.^nda-mos;   Na- 
tional Boundary. 

CONSTITUTIONS. 

as  sources  of  jurisdiction,  §  67,  p.  52. 

CONSTRUCTION 

of  '-shall'-  and  "  may,"  §  73,  p.  63. 

of  enlarged  jurisdiction,  j  6b,  p.  53, 

of  the  powers  of  inferior  courts  to  be  strict,  §  43,  p.  31. 

how  far  implications  may  he  indulged  therein,  §  4.3,  p.  31, 

CONSUL.     See  Parties. 

CONTEMPTS.     See  Courts  op  Probate. 

power  to  punish  for  contempts  essential,  ^  178,  p   177. 

nature  of  the  power — distinction  between  superior  and  inferior  courta 

— imprisonment,  ^  179,  p.  178,  note, 
need  not  be  allowed  a  defence,  §  179,  p.  179,  note, 
re-sentence  for  .same  contempt,  §  179,  p.  179.  note, 
disobedience  of  officer — rule  nisi,  §  179,  p.  179,  note, 
each  court  judge  of  its  contempt,  j  179,  p.  179. 
decision  not  usually  reviewable,  §  179,  p.  180. 
may  be  reviewed,  when  and  how,  §  179,  p.  180. 
disqualification  to  nullify  contempt  proceedings — burden  of  proof,  f 

179,  p.  180,  note, 
absconding  offender — sentence  in  his  absence,  §  179,  p.  179,  note, 
justice — words  spoken  out  of  court.  ^  179,  p.  180,  note, 
neglect  to  comply  with  order,  §  179,  p.  ISO,  note, 
refusal  to  serve  as  juror,  §  179,  p.  181,  note, 
refusal  to  pay  alimony,  ^  179,  p.  181,  note. 


INDEX.  633 

OONTEMPTS— Continued. 

habeas  corpus,  to  try  regularity  of  contempt  proceedings,  f  171),  p.  ISl, 

note, 
nature  of  proceeding,  §  180,  p.  181. 
modes  of  punisliment,  '^  180,  p.  182. 
witness  before  grand  jury,  ^  181,  p.  182. 
disobedience  to  subpoena,  ^  181,  p.  182. 
refusal  to  answer  improper  question  not  a  contempt — hnhi-as  corpus,  § 

181,  p.  183. 
what  constitutes  contempt  in  a  witness,  attorney,  or  party,  <f  181,  p. 

is;i 

distinction  between  civil  and  criminal  contempt,  §  181,  p.  1^3,  note, 
fictitious  suit,  ^  182,  p.  184. 

power  of  a  committee  to  punish  contempt,  §  179,  p.  180,  note. 
■executor  compelled  to  pay  stipends  by  contempt  proceedings,  §  181, 

p.  181,  note.     (See  below.) 
construing  order  to  obviate  contempt,  §  181,  p.  18-1,  note, 
failure  to  obey  order  must  be  wilful,  §  181,  p.  184,  note, 
demand  for  performance  necessar}-,  §  181,  p.  184,  note, 
enforcing  civil  remedies  b^^  contempt  proceedings,  ^  Isl,  p.  1«4.  note. 

(See  below.) 
wilful  evasion  of  service,  ^  181,  p.  184,  note, 
disposing  of  property  subject  to  an  order,  §  181,  p.   ls4,  note, 
whcii  trustee  is  in  contempt  for  not  paying  over  monev,  ^  181,  p.  184, 

note, 
only  parties  l)Ound  b}'  an  order,  §  181,  p.  184,  note, 
supplementary  proceedings,  ^  181,  p.  184,  note, 
an  order  on  corporate  body  binding  on  tlie  individuals,  etc.,  §  181,  p. 

184,  note, 
suinga  receiver  without  leave.  §  181,  p.  184,  note,  185. 
same  as  to  committee,  or  conservator,  ^  181,  p.  185,  note, 
error  no  defence  in  contempt  proceedings,  ^  181,  p.  18."),  note, 
advice  of  an  attorney  no  justilication,  ^  181,  p.  185,  note, 
what  a  criminal  conleinpi  consists  of,  §  181,  p.  1^5,  note, 
abuse  of  judge  out  of  court,  ^  181,  p.  18r),  note, 
venue  as  to  contempts,  §  l8l,  p.  185,  note, 
aftidavits  in  constructive  contempts,  §  181,  p.  185,  note, 
imprisoning  for  contempt  constitutional,  §  181,  p.  185,  note, 
commitment  not  avoided  by  improper  items  in  a  tine,  ^  181,  p.  185, 

note. 
res  (id judicata,  §  181,  p.  185,  note, 
bringing  fictitious  suits,  §§  182,  185,  pp.  184,  18(). 
abuse  of  persons  by  word  and  act  in  presence  of  court,  §  183,  p.  185. 
to  what  the  power  to  punish  extends,  §  184,  p.  18(:). 
client  not  answerable  for  attorney's  contempt,  §  180,  p   186. 
courts  may  be  in  contempt  and  the  judge  punished,  ^  187,  p.  180. 
al)stract  order  out  of  court — no  contempt,  ^  iss,  !>.  1S{!. 
contempt  when  no  action  pending,  ^  188,  p.  ISii 
contempt  for  not  paying  money,  §  18il,  p.  187.     (See  above.) 
demand  and  refusal,  ^  I8it,  p.  188. 
injunctions,  §  UK),  p.  188. 
justices  of  the  peace,  i  191,  p,  188. 
proceedings  not  retroactive,  §  192,  p.  188. 
citation  to  sliow  cause,  §  193,  p.  189. 
clearing  contemjjt,  §  194,  p.  Ib9. 
pardon  in  conteini)t  matters,  §  195,  p.  190. 
party  precluded  from  prosecuting  litigation,  ^  19(5,  p.  190. 
indirect  or  constructive  (T)nteini)ts — general  rule — newspapers,  ^  197, 

pp.  191-199. 

CONTK.'VCT.     See  ApMiiiAi/rv;  Kcjitity  ;  Li>:x  Loci. 


t)34  INDEX. 

CO  KPO  RATION. 

where  and  how  service  may  be  made  on,  §  114,  p.  109,  note. 

See  Attachm:p:nt ;  Churches  and  Voluntary  Societies; 
Contempt  ;  Equity  ;  Quo  Warranto. 

COSTS. 

no  judgment  for  without  jurisdiction  of  tlie  cause,  ^  15,  p.  11. 

COUNTY. 

division  of,  does  not  oust  jurisdiction  in  pending  r;auses,  ^  117,  p.  113. 
recoverv  of  costs  hy  one  county  from  finother  in  criminal  case,  §  120, 
p.  il7. 

Sue  CitiMES;   V^enle. 
COURT  OF  CLAIMS.     See  cliapter  headings  on  page  353. 

COURTS. 

control  of  attorneys,  §  177,  p.  173. 

orders  of,  only  bind  parties,  §  181,  p.  18-4,  note. 

change  of  place  of  holding,  ^  121,  p.  117. 

will  not  entertain  a  suit  against  the  trustee  of  a  foreign  government. 

^  91,  p.  80. 
may  decide  on  their  own  jurisdiction,  how,  j  ,56,  p.  41. 
must  sua  sponte  keep  in  view  the  boundaries  of  their  juri.silictiou,  p. 

48,  note  *. 
newly  established  for  the  trial  of  offences  previouslv  committed,  j 

()8,  p.  52. 
of  foreign  nations — how  jurisdiction  inquired  of,  $  58,  p.  42. 
of  sister  states — how  jurisdiction  iu(iuired  of,  ^  59,  p.  43. 

See  Co.mity;  .Jurisdiction. 
will  not  administer  public  funds  as  equitable  assets,  ^  49,  p.  39. 
supreme  courts  held  to  be  inferior,  in  Mississippi,  j  42,  p.  30. 
inferior — powers  strictly  construed.  §  43,  p.  31. 
superior  and  infericjr  defined,  ^  27,  p.  23. 
superior — how  may  be  limited,  §  2>-,  p.  24. 

superior — how  conform  to  common-law  proceedings,  §  29,  p.  24.. 
how  a  court  may  be  both  superior  and  inferior,  ^  2;l,  p.  25. 
of  foreign  nation — decision  as  to  jurisdiction,  §  20,  p.  13. 
dejure  and  de  Junto,  p.  14,  note  *. 
illegal — general  rule,  ^  21,  p.  14. 
confederate,  ■}  22,  p.  14. 
legalizing  proceedings  of,  §  23,  p.  IG. 
general  rule  as  to,  ^  24,  pp.  10-21. 

COURTS  OF   PROBATE. 

limits  of  jurisdiction  and  its  nature,  §  271,  pp.  282,  283. 

authority  mainly  statutory,  §  272,  p.  283. 

relation  to  courts  of  chancery,  §  273,  p.  283. 

general  rule,  §  273,  p.  284. 

concurrent  jurisdiction,  §  273,  pp.  284,  285. 

legacy  assented  to  sued  in  other  courts,  §  273,  p.  285. 

ccjnsent  cannot  give  jurisdiction,  «  273,  p.  2'^5. 

mistakes  only  cured  by  appeal,  §  273,  p.  285. 

judgments  not  questioned  collaterally,  j  274,  pp.  2S5-2S7.- 

See,  also,  note  on  jjage  2^7. 
last  domicile  determines  juri.sdiction,  §  275,  p.  288, 
wills— cognizance  .of ,  U  276,  290,  pp.  289,  297. 
appointing  power,  §  277,  pp.  290,  291. 
controlling  and  removing  power,  ^  278,  p.  291. 
testamentary  trusts,  §j  277,  250,  285,  pp.  290,  293,  296. 
assets  of  estates,  §  279,  p.  292. 
claims,  §  2b0,  p.  292. 

property  in  administrator's  hands — title  to,  §  280,  p   293. 
homestead  in  dispute,  §  280,  p.  293. 


INDEX.  635 

COURTS  OF  PROBATE— Continued, 
trusts,  §  280,  p.  293,  note, 
partition  and  dower,  §  281,  p.  294. 
selling  lands  to  pay  debts,  ^  282,  p.  294. 
seliino-  lands  for  other  purposes,  ^  282,  p.  295. 
Iiindinii'  out  orphans,  v'i  'Ki,  p.  29(j. 
selling  homestead  to  pay  debts,  §  284,  p.  296. 
deternuning  bequests,  ^  28.'5,  p.  296. 
partnership  accounts,  j  286,  p.  296. 
set-otfs,  §  287.  p.  296.' 

personal  property  in  another  state,  j  288,  p.  297. 
no  control  of  e.vecutor  in  another  court,  §  289,  p.  297. 
specific  performance.  §  29],  p.  297. 
attachment,  §  29],  pp.  297,  298. 
fraud,  §  292,  p.  29 s. 
change  of  venue,  ^  293,  p.  298. 
limitations,  j  294,  p.  298. 
remote  settlements,  j  295,  p.  298. 
rents,  §  296,  p.  298. 
JiabetiK  corpus,  ^  297,  p.  298. 
contempts,  §  298,  p.  298. 

settlement  and  distribution,  f§  280,  299,  300,  pp.  293,  note,  299,  300. 
disqualification  of  judge,  §  301,  p.  301. 
terms,  j  3(>2,  p.  301. 

CEIMES. 

committed  by  a  non-resident  within  the  state,  wholly  statutory  as  to 

the  United  States  courts,  j  304.  pp.  303,  304. 
summary  of  statutory  crimes  as  to  Uniteil  States  courts.  §  3()."),  pp 

3tt4^306. 
criminal  proceeding  cannot  be  used  to  collect  a  dei)t,  ■J  306,  pp.  306, 

307. 
"once  in  jeopardy"  explained,  §  307,  pp.  307,  30s. 
justice  enforced  by  private  citizens,  j  308,  pp.  308-312. 
all  crimes  are  several,  even  if  jointly  committed,  §  307,  p.  307,  note. 
punislial)le  attempts,  §  3o9,  p.  312. 
wrongful  intent  nece.ssary,  ^  310,  pp.  312-314. 
etieet  of  pardon  on  jurisdiction,  §  311,  p.  314. 
venue,  §  312,  p.  314. 

venue  as  to  extra-territorial  olTences,  §  31.'5,  pp.  315-321. 
illegal  voting  beyond  tin;  limits  of  the  state,  §  314,  pp.  321-323. 
responsibility  of  allegiance  abroad,  §  315,  p.  .323. 
laws  have  no  extra-territorial  operation,  ^  316,  pp.  323-325. 
oll'ences  conunitted  by  an  agent  in  another  state,  §  317,  pp.  325-328. 
Mr.  Wharton's  view  of  international  crimes,  §  318,  p.  328.    • 
as  to  acts  jiartly  coimuitted  in  dilfcrent  counties,  §  319,  p.  329. 
ofl'ences  made  of  dist.inct  acts  in  dilfei'ent  loealitit's,  §  320,  p.  329. 
continuing  crimes,  §  320,  pp.  .331-333. 
foreigners  committing  offences,  §  321,  pp.  333-335. 
extradition,  §  322,  pp.  333-339. 

See  Common  L.\w  ;  Ciuminai,  Law. 

CiUMINAL  LAW. 

venue  in  state  where  a  crime  is  committetl,  §  113,  p.  106. 
See  Co.M.Mox   Law;  Ci:i.mes. 

DATE. 

of  summons  is  the  date  of  the  commencement  of  suit,  §  83^  p.  72. 
Se(!   Pai{tiks. 

DAY  IN  conrr. 

to  be  afforded,  §  82,  p.  69. 


G80  INDEX. 

DEFEAT  OF  JURISDICTIOX. 

See  JuiiisDicTioN ;  Statutes. 

DEFINITION. 

of  jurisdiction,  §§  1,  3,  p.  2. 
DEMUliRER. 

lor  want  Oi  juristliction,  §  64.  pp.  44,  45. 
DISCRETION. 

of  government  departments  not  interfered  with,  i  47,  p.  33. 
See  Mandamus. 

of  courts.     See  Incidentai,  Jurisdiction. 

DISQUALIFICATION.       See    Attachment;      Courts    of    Fiioijate  ; 

Judges. 
DISTINCTION. 

between  ministerial  and  judicial  acts,  §  5,  p.  3.     Soe  jNIandamus. 

l)etween  different  liinds  of  jurisdiction,  ^  7  et  seq.,  p.  7  et  seq. 
DIVORCE.     See  Common  Law. 

DOMICILE.     See  Attacilmknt  ;  Courts  op  Prouate. 
DOUBT  AND  BELIEF.     See  Amount. 
DOWER.     See  Court  of  Probate. 

ECCLESIASTICAL  COURTS,     See  Common  L.^.w. 

ECCLE.SIASTICAL  PROPERTY.     See  Churches  and  Vouunt.vtjy  So- 
i:iETiES ;   Co.M.MoN  Law. 

EMINENT  DOMAIN.     See  chapter  headings  on  page  4(i:'. 
EQUITY. 

when  will  not  interpo,se  where  there  is  a  remedy  at  law,  j  215,  p.  223 
and  note.  / 

clearing  title,  ^  215,  235,  p.  224,  note,  248. 

recovering  possession,  §  215.  p.  224,  note. 

title  to  Jjersonal  property.  §  215,  p.  224,  note. 

ownership,  possession,  and  dedication,  §  215,  p.  224,  note. 

relation  of  mortgagor  and  mortgagee,  §  215,  p.  225,  note. 

administration  of  estates,.  §  215,  p.  225,  note. 

construing  a  will,  §  215,  p.  225,  note. 

right  of  adopted  heir.  §  215,  p.  225,  note. 

compelling  duty  of  administrator,  ^  215,  p.  225,  note. 

settlement  among  distributees,  ^  215,  p.  225,  note. 

sales  of  lands  and  directing  proceeds,  §  215,  p.  225,  note.    (See  below.) 

directing  proceeds  of  crops  raised  by  administrator,  §  215,  p.  225,  note. 

defects  of  statutory  remedies,  §  215,  p.  225,  note. 

failure  to  execute  instruments,  i  215,  p.  225,  note. 

voluntary  promise  or  unexecuie  I  gift,  §  215,  p.  225,  note. 

matters  of  account,  ^  215,  pp.  225,  note,  226.     (See  below— P.\i!tnki:- 

SIIIP.) 

misappropriation  of  funds  b}'  officers  of  corporation,  ^  215,  p.  225, 

note, 
failure  to  issue  corporate  stocks,  §  215,  p.  225,  note, 
commissions,  §  215,  p.  225,  note, 
mechanic's  lien,  ^  215,  p.  225,  note, 
apportioning  encumbrances,  §  215,  p.  226,  note, 
labor  performed  for  trust  estates,  §  215,  p.  226,  note.     (See  below.) 
loss  of  instrument  under  seal,  §  215,  p.  226,  note, 
courts  of  law  exercising  etpiiiahle  jurisdiction,  j  216,  p.  226. 
concurrent  jurisdiction  of  law  and  equity,  §  216,  p.  226. 
nuisance,  ^  216,  pp.  226,  227,  note, 
mulliiilicity  jf  suits,  §  217,  p    227. 
when  equity  will  interfere  though  inainl  naus  would  lie,  {  217,  p.  227. 


INDEX.  687 

EQUITY— Cont  inued. 

does  not  revise  or  correct  legal  proceedings,  §  218,  p.  230. 

enjoining  suits  at  law,  §  218,  p.  231. 

will  not  supply  defences  or  counteract  neglect,  §  219,  p.  231. 

setting  aside  legal  proceedings,  §  220,  pp.  232,  233. 

will  not  set  legal  proceedings  aside  on  the  ground  of  mere  error,   § 
229,  p.  234 

supervising  proceedings  of  a  justice  of  the  peace,  j  222,  p.  234. 

dire(!t  action  of  payment  of  money,  ^  223,  p.  234. 

legal  and  eciuitalile  grounds  of  relief,  §  223,  p.  234. 

penalties  and  forfeitures,  §  224,  p.  23'). 

validity  of  elections,  §  225,  p.  23.5. 

extent  or  mode  of  legal  right,  §  22G,  p.  235. 

Avill  retain  cause  for  full  justice,  §  227,  p.  235. 

equitable  conversion.  §  229,  p.  23t). 

discretion — estabiishecl  rules,  §  229,  p.  2K!. 

exjilanation  of  equity  maxims,  §  229,  pp.  236,  237 

nature  of  remedies  in  equity,  §  229,  p.  237. 

trusts,  ^  230,  p.  237.     (See  above.) 

trust  deeds,  §  230,  p.  239. 

frauds,  §  231,  p.  239. 

cancellalion  and  rescission — examples,  §  232,  pp.  240-243. 

reformation,  §  233.  pp.  243-240. 

specific  performance,  §  2.34,  pp.  24(J,  247. 

partnership,  v)  23(),  p.  248.     (See  above — Account.) 

suretyship,  ^  2.'57,  p.  248. 

ne  exeat  writs,  §  238,  p.  24s.     See  Ne  Exe.\t. 

discovery,  §  239,  p.  249. 

power  to  sell  lands.    See  chapter  headings  on  page  fiOS. 

preventive  jurisdiction — bills  of  peace — injunctions,  §  250,  p.  249. 

will  not  control  the  administration  of  public  funds,  §  49,  p.  36. 

See  .lujusojc^riox ;  Exclusive  and  Concurrent  Juhisdic- 
TioN ;  Parties. 
ESTATES.     See  Court.s  of  Pkokatk  ;  Equity. 
ETY.MOLOGY. 

of  the  word  "  jurisdiction,"  §  1,  p,  1. 

EXCLUSIVE  AND  CONCUUKENT  .JURISDICTION. 

in  general,  §  154,  p.  148. 

concurr(;nce   between    law    and    equity    courts,  §    155,   p.   148.      See 

Equitv. 
proceedings  mav  be  maialaine.l  at  law  and  in  equitv  at  the  same  time, 

§  155. "p.  148. 
coui't   first   acquiring    possession  of   a   cause  letains  it  tliroughout, 

H56,  p.  149. 

See  Jurisdiction;  Couii'rs  op  PRoriATE. 

EXECUTIVE  DEPARTMENT.     See  Constitution au  Law  ;  Mandamus. 

EXECUTOR.     See  Attacu.ment;   Courts  oe  Proh.vte. 

EXEMPLIFICATIONS.     See  Common  Law. 

FEDERAL  JURISDICTION. 

over  crimes  in  navy  yards,  §  113,  p.  100. 

over  high  seas — what  are  high  seas,  i  113,  p.  107. 

S(!e  Admihauty  :  Cduiits:   H a be.vr  Corpus. 

FOIiElON  CORPORATIONS. 

suit  against  by  non-residents,      89,  p.  80. 
See  Parties. 
FOREIGNERS.     See  Admiisai.ty  ;   Crimes. 
FOREIGN  NATIONS.     See  AoMiiiAi/rv;  Courts. 


638  INDEX. 

FORFEITURES.     See  Equity. 

FRAUD.     See  Coubts  of  Puobvte;  Equity;  Parties. 

GARNISHMENT. 

what  may  be  reached  by  oarnisliment  in  general,  §  549,  p.  528. 

general  rule  governing,  4  549,  p.  529,  note. 

Louisiana  case,  §  550,  p.  530. 

property  in  the  hands  of  officers,  or  agents,  or  bailees,    j  549,  p.  530, 

note, 
municipalities,  i  549,  p.  530,  note, 
private  corporations,  p.  531,  note, 
silariesand  wages,  p.  531,  note, 
estates,  p.  532.  note, 
promissory  notes,  etc.,  p.  532,  note, 
bank  clie(;ks,  p.  5.32,  note, 
settlements,  p.  532,  note, 
balance  on  subscriptions,  p.  5-33,  note, 
mortgages,  p.  533,  note, 
judgment  debts,  p.  533,  note, 
future  and  contingent  liabilities,  p.  533,  note. 
partnerships,  etc.,  p.  534,  note, 
husband  and  wife,  p.  534,  note, 
assignments,  p.  534,  note. 

a.ssignment  of  partnership  for  creditors,  p.  535.  note, 
assignment  of  wages,  p.  535,  note, 
plaintiff  as  garnishee  not  allowed,  p.  535,  note, 
exemptions,  p.  535.  note. 
res  adjudicata,  p.  53(j,  note, 
venue,  p.  536,  note, 
purcliaser  from  one  selling  goods  to  defraud,  and  notes  given  to  a 

third  person,  «  551,  p.  536. 
assignment  of  promissory  note  before  due,  ^  552,  p.  537. 
joint  debts  from  trustees.  \^  553,  p.  537 
money  in  the  hands  of  a  court  or  officer,  §  554,  p.  537. 
money  in  the  hands  of  an  attorney,  §^  554.  562,  pp.  538,  544. 
money  in  the  hands  of  school  treasurers,  §  554,  p.  538. 
chancery  trustee.  ^  554,  p.  538. 
judgment  debloi-,  ^  554,  p.  5.38. 
fees  due  a  juror,  j  554,  p.  539. 
agent,  §  555,  p.  539. 

holder  of  choses  in  action,  §  555,  p.  539. 
executors  and  administrators,  ^  556,  p.  5.39. 
partneiships,  *  557,  p.  540. 
municipalities.  §  558,  p.  541. 
private  corporations,  \  559,  p.  541. 
foreign  corporations,  H  559,  560,  pp.  542,  544. 
mone}"  in  hands  of  railroad  station  agent,  etc.,  $  560,  p.  542. 
mone}'  in  hands  of  cashier  of  a  bank,  §  560,  p.  544. 
money  deposited  with  a  mercantile  firm,  ^  561,  p.  .544. 
note  executed  to  wife  to  defraud  creditors,  ^  563,  p.  545. 
salary  or  wages  of  policemen.  ^  564,  p.  545. 
when  wages  not  on  a  broken  contract,  ^  565,  p.  545. 
money  held  as  indemnity,  ^  566,  p.  546. 
claims  under  an  insurance  policy,  §  567,  p.  546. 
guests  at  hotels,  §  568,  p.  .546. 

creditor  of  fraudulent  mortgagor  or  grantee,  §  569,  p.  546. 
fraudulent  assignment  of  contract,  §  569,  p.  546. 
surplus  under  trust  deed,  ^  569,  p.  546. 
consignee  of  goods  who  makes  advances,  f  570,  p.  547. 
spendthrift's  guardian,  ^  571,  p.  .547. 
set-offs  on  account  of  taxes,  §  572,  p.  547. 


INDEX. 


639 


-'<JAIINI81I>[ENT— Continued. 

military  bounties  in  liands  of  officers,  ^  573,  p.  547. 

double  garnishment — remedy  for,  §  574,  p.  547. 

effect  of  service  of  process,  §  575,  p.  547 

exemption  personal  to  garnishee,  §  57tJ,  p.  54S. 

exemption  of  negotialtle  piper,  §  57(i,  p.  54s. 

pensions.  §  57().  p.  54^, 

Ava"-cs  pava'.ilc  by  ins;alments  so  as  to  keep  \T'ilhiii  cxcmi)lion,  §  57(1, 
^  p.  54<. 
GIFT.     See  E(iU IT V. 
GOVEUN^IEXT.     See  Claims. 

<tOVERNOK.     See  Constitutional  Law,  (Limitations.) 
GUA^RDIAN  AD  LITEM.     See  Habeas  Corpus;  Pabties. 

HABEAS  CORPUS. 

nature  of  the  writ,  j  577,  p.  549. 

general  rules  of  issuing,  ^  577,  p.  549,  note. 

power  of  issuing,  ^  578,  p.  550. 

what  may  l)e  inciuired  into,  ^  579.  p.  55L 

sentences,  §§  57^,  581,  582,  590,  594,  pp.  551,  552,  553,  564,  565. 

imprisonment  of  United  States  officers,  §  580,  p.  552. 

power  of  an  appellate  court,  §  5S1,  p.  552. 

as  to  fugitives  from  justice,  §  583,  pp.  553,  554. 

interference  of  executive,  §  583,  p.  554. 

requisitions — interference  of  courts,  §  583,  p.  550. 

constitutionality  of  a  law  inquired  of,  §  584,  p.  556. 

proof  as  to  legality  of  detention,  §  585,  p.  557. 

in  contempt  proceedings,  §§  181,  586,  pp.  183,  557,  note,  558,  note. 

inquiry  into  the  nature  and  validity  of  process,  §  587,  p.  558. 

enlistment  of  minors,  ^  588,  p.  558. 

custody  of  children,  j  589,  pp.  559,  560  and  notes,  561-563. 

effect  of  indictment,  §  590,  pp.  563,  564. 

arrest  under  civil  process,  i  591,  p.  564. 

admitting  to  bail,  ^  592,  p.  565.     (See  below.) 

joint  offences,  ^  593,  p.  565. 

recognizance  of  appeal,  §  595,  p.  565.     (See  aljove.) 

release  of  lunatic,  §  596,  p.  566. 

writ  in  vacation,  §  597,  p.  566. 

suspension  of  the  writ,  §  598,  pp.  566-570. 

discharge  by  a  court  without  jurisdiction   does  not   protect  officer 
against  an  action  for  an  escape,  §  17,  p.  12. 
See  Courts  op  Proratk. 
HEIR.     See  Equity. 

HIGrHWAYS.     See  chapter  headings  on  page  402. 
HIGH  SEAS. 

wJiit  arc,  §  113,  p.  107. 
HO.^IESTEAl).  See  Courts  of  Probate. 
HOMESTEAD  CLAIMS. 

under  United  States  laws.     See  chapter  headings  on  page  373. 

IMPEACHMENT.     See  Com.mon  Law^  ;  Notjck  ;    nntl  cliaptcr  headings 
on  page  378. 

INCIDENTAL  .lURlSDICTlON. 

when  jurisdiction  of  the  persons  and  subj(!Ct-mtitter  gives  jurisdiction 

of  property  in  foreign  country,  j  117,  p.  114. 
of  partition — eont(-st  of  will  not  incidental,  §  117,  p.  113. 
in  rem — non-resident  parties,  §  117,  p.  113. 
in  general,  §  140,  p.  130. 


640  INDEX. 

INrl DENTAL  JURISDICTION— Continued. 

discretion  of  court,  j  140,  p.  130. 

rules  of  court,  ^  141,  p.  130. 

power  to  proiiil)it  publication  of  proceedings — injunction,  j  142,  p.  13I._ 

ainendnieuls  within  discretion  of  court,  §  143,  p.  131. 

rules  of  court  control lalile  by  legislature,  §§  132,  143,  p.  131,  note. 

rule  of  court  must  not  be  in  derogation  of  the  common  law,  4  143,  p. 
132,  note. 

court  may  enter  judgment  n'uic  pro  tunc,  §  143,  p.  132,  note. 

expediency  of  rules,  >§  143,  p.  132,  note. 

may  excuse  infrac'ion,  §  143.  p.  132,  note. 

supreme  court  ma_v  appoint  janitor,  §  143,  p.  132,  note. 

may  regulate  sittirigs,  §  143,  p.  132.  note. 

communication  between  courts,  ^  143,  p.  132,  note. 

control  of  process,  §  144,  p.  133. 

rule — compelling  performance  of  immaterial  acts,  §  143,  p.  132. 

See  chapter  headings  on  page  13U;  Churches  and  Volun- 
TAUY  Societies  ;  Supplemental  Puoceedings. 
INDIANS 

as  parties,  ^  94,  p.  x2. 
INDICTMENT. 

when  discharged  by  repeal  of  statute,  s^  73,  p.  63. 

venue  as  to,  §  120,  p.  117. 

See  Chimes;  Ciu.minal  Law;  Habeas  Corpus. 
INJL  XCTION.     See  Equity;  Taxation. 

of  process,  ^  1.56,  p.  150. 

of  proceedings  at  law,  §  156,  p.  150. 
IN  REM  PKOCEEDINGS.     See  ADMiR.^.LTy;    Attachment;    Parties^ 
INSOLVENCY.     See  Atta('Hment;  Bankruptcy. 
INSTRUMENTS.     See  Equity. 
INSURANCE.     See  Admiralty. 
INTER-STATE  CITIZENSHIP. 

right  of  non-residents  to  sue  non-residents  in  state  courts,  *  114,  p^ 
108. 

INTER-STATE   .JURISDICTION.     See  Jurisdiction. 

JUDGES.     See  Courts  op  Pijob.^te. 

purity  of,  §  163,  p.  157. 

objection  of  age  as  a  qualification,  j  164,  p.  15;*. 

disqualification  cannot  be  raised  by  party  to  suit,  but  must  be  raised 
in  direct  proceeding,  §  164,  p.  15s. 

validit}-  of  acts  of  disqualified  judge,  §  164,  p.  158. 
See  Attaciimext. 

special  judge — authority  maybe  questioned  by  party,  §  164,  p.  159. 

residence — as  qualification,  \  16.5,  p.  159. 

must  be  free  from  utficial  or  personal  bias,  j  166.  p.  159. 

holding  other  oftice,  §  166,  p.  160. 

magistrate — not  disqualified  by  liaving  been  a  witness  or  drawn  a 
lease,  i  167,  p.  160. 

mere  partisan  feeling  will  not  disqualify,  §  168.  p.  160. 

judge  cannot  act  as  counsel  in  his  own  court,  or  decide  a  cause  in 
which  he  has  been  coun.sel — extent  of  the  rule — consent  of  par- 
ties, §  169,  p.  161. 

relationship  as  a  disqualification,  j  170,  p.  162. 

pecuniary  interest  as  a  disqualification,  i  171.  p.  163. 

ajjpointment  of  judge  to  act  in-^tead  of  disqualified  judge,  j  171,  p.  163. 

waiver  of  objection  of  pecuniary  interest,  j  171,  pp.  164,  165. 

burden  of  prof)f  to  show  incapacity,  §  171,  p.  165. 

summary  of  the  matters  of  disqualification,  §  172,  p.  166. 


INDEX.  641 

JUDGES— Continued 

substitution  whore  there  is  no  otHcial  disqualification,  §  174,  p.  168. 
power  of  substitution  must  be  strictly  pursued,  ^  174,  p.  109. 
in  Louisiana  substitute  must  be  a  practitioner,  §  175,  p.  109,  note, 
not  lial)lc  for  damages  proceeding  from  mistake,  j  175,  p.  109. 
liability  for  misconduct  in  ofiice,  §  176,  p.  172. 
autliuiity  over  attorneys,  §  177,  p.  173. 
See  Incidrntal,  Juiusdictiok. 
JUDGMENT. 

not  personal  as  to  corporations  in  proceedings  in  rem,  §  SO,  p.  80. 
may  be  entered  nunc  pro  tunc,  §  143,  p.  132,  note. 

JUDICIAL  DEPARTMEXT, 

to  determine  the  constitutionality  of  statutes,  §  6,  p.  3. 

JUDICIAL  AND  MINISTERIAL  ACTS. 

distinguished,  §  5,  p.  3. 
See  M.\XD.\Mus. 

JUDICIAL  SALES. 

of  land  inforeian  state,  4  1^6,  p.  112. 

power  of  equity  in.     See  chapter  headings,  p.  609. 

JURISDICTION. 

what  it  is,  §§  1,  3,   pp.  1,2. 

See  P.MiTiEs. 
what  gives,  §  4,  p.  2. 
plaintiffs  right,  p.  3,  note. 

distinction  lietween  jurisdictional  and  ministerial  acts,  ^  5,  p.  3. 
distinction  as  to  kinds  of,  ^  1  et  seq.,  p.  7  at  seq. 
r.ecessar^^  to  giving  any  opinion,  §  13,  p.  10. 
incidental,  p.  9,  note. 

See  CouKTs  ;  Habeas  Cohpus  ;  Incidkntat,  Juiusdic  riox. 
transcended,  §  17,  p.  12. 
subsequent  investiture  of  jurisdiction — effect  on  pending  suits  takea 

Without  juiisdictliiii,  §  l.s,  p.  12. 
of  superior  court  not  assaihd  in  collateral  proceeding,  §  32,  p.  26.   (See 

below.) 
ex'ceptions  to  tliis  rule.  §  33,  p.  27. 
general  rule  as  to  collateral  inquiries  concerning  jurisdiclionj  §  57, 

p.  41. 
when  protected  by  the  doctrine  of  stare  dectsin,  ^  19,  p.  12. 
general  and  limited,  §  26,  p.  22 

See  Coinrrs;  I'hesumptions. 
axioms  as  to  declarations  of,  §  50,  p.  41. 
how  decided,  §  56,  p.  41. 

Jiow  collaterally  inquired  of,  §  57,  p.  41.    (See  above.) 
of  undetermined  cases  not  inquired  of,  ^  60,  p.  44. 
determination  of  inferior  court  tJiereon,  ^  01,  p.  44. 
courts  bound  to  inquire  as  to  their  own,  §  02,  p.  44. 
objection  as  to  subject-matter — when  taken,  ^  03,  p.  44. 
how  objection  taken,  ^  04,  p.  44. 

not  conferred  as  to  subject-matter  by  consent,  <}  66,  p.  47. 
as  to  a  criminal  case  not  by  consent,  $  60,  p.  47. 
or  as  to  a  cori)oration,  ^  66,  p.  47. 

sources  of,  (1,)  common  law,  (2,)  constitutions,  (3,)  statutes,  ^  07,  p.  52. 
new  offence  designated,  and  special  tribunal   having  exclusive  cog- 
nizance thereof,  §  68,  p.  52. 
enlargement  of,  §  '6><,  p.  53. 

See  Co.NSTiTUTioNAL  Law;  Statutes. 
ousted  by  bankruptcy,  §  76,  p.  64. 
ousted  by  certifying  cause,  ^  77,  p.  64. 
not  by  general  agreement  of  arbitration,  §  78,  p.  64. 
v.l— 41 


642  INDEX. 

JU1{18])ICTI0N— CGntimied. 

nic'tliod  of  proeeecliiig  where  judge  is  disqualified,  §  173,  p.  167. 

not  ousted  l)y  subsequent  lact  in  a  cause,  §  7r>,  pp.  65,  67. 

not  ousted  by  incidental  question  of  title,  j  79,  p.  67. 

exception  as  to  subsef^uent  fact  in  the  case  of  attachment.  »  79.  p.  CS. 

not  ousted  by  subsequent  recovery  of  a  lunatic,  §  81,  p.  68. 

not  l)y  giving  concurrent  jurisdiction,  i  SO,  p.  6i^. 

of  person  may  be  conferred  by  consent,  f  >!.  p.  7-1. 

See  ApPE.\Ti.\NCE. 
dependent  on  residence,  §  87,  p.  76. 
general,  of  state,  §  113,  p.  105. 
as  to  suits  between  non-residents,  §  114,  p.  lOS. 
service — appearance  in  case  of  non-residents,  §  11-1,  p.  109 
of  torts  committed  abroad,  §  115,  p.  110. 
oflicial  misconduct  of  non-resident,  j  115,  p.  112. 
real  action  as  to  foreign  lands,  §  116,  p.  112. 
sale  of  lands  in  foreign  state,  §  116,  p.  112. 
in  equity  depends  on  residence,  §  90,  p.  80. 
in  suit  for  partition  does  not  confer  jurisdiction  to  contest  will.  §  117, 

p.  113. 
place  of  payment  controls  jurisdiction,  §  118,  p.  116. 
provisional  courts — ousting,  ^  131,  p.  125. 
of  military  courts.     See  chapter  headings  on  page  571. 

See  Amount  ;  Boundaries;  Constititionai.  Law;  Incidental 
Jurisdiction,  and  Specl^l,  Topics. 
JUKY. 

constitutional  right  of  trial  by.  cannot  be  indirectly  taken   away  tiy 
legislation,  as  by  transference  to  a  court   without  power  ti>  eni- 
. panel  a  jury,  §  68,  p.  54. 
an  equity  court  recognized  by  a  constitution  cannot  be  compelled  to 
submit  equitable  facts  to  a  jury,  §  68,  p.  54. 
JUSTICK  OF  THE  PEACE. 

may  determine  the  constitutionality  of  a  statute,  §  6,  p.  5. 
jurisdiction  wholly  statutory,  §  65,  p.  46. 

See  Common  Law;  Equity;  and  chapter  headings  on  page 
386. 
JUSTIFKJATIOX  OF  OFFICEK. 
in  taking  goods,  §  44,  p.  31. 
See  Judges. 

LAW  MEUCHANT.     See  Common  Law. 
LEGISLATURE. 

may  change  the  principles  of  presumptions  as  to  jurisdiction,  i  45,  p. 

may  call  for  opinions  of  the  supreme  court  on  important  questions 

of  law,  under  restrictions,  p.  34,  note, 
discretion  of  in  regard  to  public  faith,  i  49,  p.  36. 

See  chapter  on  Constitution  at.  Limitations;  and  see  Stat- 
utes. 
LEVY. 

does  not  confer  jurisdiction.  ^^  119.  p.  116. 
LEX  LOCI. 

as  U)  c(jntracts,  §  114,  p.  110. 

contracts  void  where  made  will  not  be  enforced,  §  114,  p.  110,  note, 
as  to  torts,  «  114,  p.  110. 
as  to  sale  of  lands,  §  116,  p.  112. 
See  Special  Topics. 
LIENS.     See  Attachment,  ' 


INDEX.  043 

LIMITATIONS. 

of  superior  jurisdiction,  §  99,  p.  93. 

See  Amount;     Constitutionai>  Limit -VTrox;*  and   Special. 
Tones. 
by  territory,  §  119,  p.  116. 

See  CouBTs  op  Probvte;  Constitdtionatj  Law. 

LODGES.     See  Chuuches  and  Voluntauv  Societies. 

MAGISTRATE.     See  Judges. 

MANDAMUS. 

does  not  lie  to  compel  a  speaker  to  send  a  1)111  to  the  s(^uatc  for  action 

thereon,  §  47,  p.  33. 
as  to  executive  action — discretion  not  interfered  with,   §i  47,  4s,  pp. 

34-3(J. 
may  compel  a  secretary  of  state  to  cancel  corporation  license,  p.  34, 

note  t- 
discretion  of  legislature  as  to  pul)lic  faith,  §  49.  p.  .ifj. 
does  not  lie  to  compel  a  comptroller  of  the  state  to  countersiun  and 

register  railroad  bonds,  §  49,  p.  37. 
nor  to  compel  secretary  of  state  to  promulgate  a  law,  v  '>1,  P-  38. 
.     abated  by  repeal  of  statute,  §  69,  p.  5{j. 
nature  of  the  writ,  §  472,  p.  472. 

and  of  the  right  to  he  enforced,  §  472,  pp.  472,  473,  note. 
and  of  the  iniercst  therein  of  applicant,  j  472,  pp.  472,  note,  473. 
sound  discretion  in  issuing  writ,  §  473,  p.  473. 
present  legal  duty,  §  472,  p.  473,  note, 
successor  in  otlice,  §  472,  p.  473,  note, 
where  performance  impossible,  §  472,  p.  473,  note, 
legal  as  well  as  physical  impossiliility,  §  472,  p.  474,  note, 
matters  of  discretion,  §  472,  p.  474,  note, 
only  ministerial  acts  can  l)e  compelled,  §  472,  p.  47'),  note. 
unliquidated  demands,  §  472.  p.  475,  note. 
conditional  duty,  §  472,  p.  475,  note, 
when  courts  have  discretion  in  issuing  mdiiduui  us,  i  472.  p.  47.'>.  and 

noto((l.) 
the  writ  a  writ  of  right  in  some  states  and  the  Initnl  Stales  courts, 

§  472,  p.  475. 
where  there  are  other  remedies,  ?^^  474,  47<i,  p.  4<t,i;    '\  47G.  note,  pj). 

477,  478. 
discretion  guided  by  common-law  rule,  ^  475.  p.  47t). 
church  order  ma)'  be  enforccfl  by  laumlaniuti,  ^  475,  p.  47(). 
to  enforce  the  performauee  of  an  otiieial  duty,  §  477,  p.  47o. 
official  duty  may  arise  by  implication,  §  477,  p.  479. 
demand  and  refusal,  §  478,  [■){>.  479,  4su,  woXv  {>/.) 
official  discretion  cannot  be  (;oereed  l)y  niniidiiiri.ux,  <^  479,  p.  480. 
not  supply  the  place  of  an  appeal  or  uril  of  eiTor,  §  4X0.  p.  480. 
illegal  acts  not  compelled  nor  impossible  legally.  'J  4^^!,  p,  4^2. 
what  courts  may  issue  writs,  l^  4.'"2.  p.  4s2. 

to  try  whether  officer  posses.scs  power  to  perform  an  act,  ^^  4^3,  p.  482. 
writissued  by  ap])ellate  couH,  ^■^>^A,  ]).  4S2. 
not  mere  matters  of  contract  enforced,  §  4b5,  p.  4^3. 
state  executive  officers,  i  4Mj,  p.  4s3. 
extradition,  §  4s(;,  p.  4s4. , 
state  treasurer,  §  4^7,  p.  4s5. 

to  compel  certilieate  of  election  froin  seerclary  of  state.  >^  488,  p.  4S(). 
wi'it  issued  to  inferior  ('(jurt.  ^  489.  p.  4s(;. 
railroad  company  not  compelled  by  iiitfn(l,'iiinif<  toconileiuii  land,  ^  490, 

p.  4s7. 
payment  of  a  professor  in  state  university,  §  491,  p.  48:5. 
where  a  man  (iiuiun  can  operate,  §  492,  ]).  489. 


644  INDEX. 

MAXDAM  US— Continued. 

to  compel  payment  of  a  school  teacher,  §  4!i.'!,  p.  489. 

to  compel  levy  of  tax  to  pay  corporation  judgment,  (■  47G,  p.  478,  note. 

issuing  bonds  for  public  improvements,  §  494,  p.  480. 

to  compel  assessment  of  taxes,  §  494,  p.  491. 

United  Slates  courts,  and  state  courts  and  officers,  §  494,  p.  491. 

to  compel  an  estimate  of  amount  for  carrving  on  puljlic  schools,  ^ 

494,  p.  492. 
auditing  claims  to  military  bounty,  {494,  p.  492. 
payment  of  officer's  salary,  §  494,  p.  492. 
to  compel  a  credit,  §  494,  p.  493. 
to  is.sue  county  warrants,  §  494,  p.  493. 
refunding  illegal  taxes,  §  494,  p.  493. 
only  present  duty  enforced,  not  future,  §  494,  p.  493. 
money  payable  on  warrant — conditional,  $  494,  p.  493. 
not  control  discretion  of  city  council,  §  494,  p.  494. 
may  compel  mayor  and  aldermen  to  deteimine  ferry  rates  according 

to  statute,  M95,  p.  4!I4. 
to  compel  railroad  company  to  grade  track  or  deliver  grain,  §  490,  p. 

494. 
when  to  compel  life-pass  on  subscription  stock,  §  49G,  p.  495. 
church  membership  or  occupancy  of  pulpit  not,  §  497,  pp.  495,  49C. 
enforcing  a  bid  on  public  contracts,  §  4'J8,  p.  496. 
commanding  a  meeting  and  election  by  city  council,  ^  499,  p.  496. 
compelling  canvass  of  votes  at  election,  §  49!i,  p.  4!)7. 
officer  retiring  fron\  office  while  proceedings  pending,  j  5UU,  p.  497. 
not  try  right  to  public  office,  §  oul,  p.  497. 
demand  for  keys,  etc.,  enforced,  §  502,  p.  497. 
not  tr\-  location  of  highway,  §  503,  p.  498. 
to  compel  public  seal,  §  504,  p.  498. 
to  compel  execution  of  deed  by  officer,  §  505,  p.  498. 
to  compel  signing  of  contract,  §  505,  p.  499. 

to  compel  admission  of  colored  child  into  public  school,  {  506,  p.  499. 
to  compel  right  of  member  to  sit  on  school  committee,  §  506,  p.  499. 
to  compel  a  .survey,  (not,)  §  507,  p.  499. 

-amenability  of  inferior  courts — summary,  §  508,  pp.  499,  500. 
to  strike  off  a  jury  list  one  not  liable  to  serve,  ^  508,  p.  500. 
one  court  not  compel  obedience  for  another,  §  508,  p.  500. 
proceedings  on  return  to  alternative  writ,  §  509,  p.  500. 
alternative  writ  amendal)le,  §  509,  p.  500. 
who  may  be  a  relator,  §  510,  p.  500. 

MARTIAL  LAW.     See  Military  Law. 

MECHANICS  LIEX.     See  Equity. 

MILITARY  COURTS. 

jurisdictional  facts  must  appear,  §  42,  p.  30. 
See  chapter  heaiiings  on  page  571. 

MILITARY  LAW. 

resistance  to  enrollment,  §  600,  p.  576. 

soliciting  one  to  go  abroad  to  enlist,  §  600,  p.  577. 

enticing  minor  into  the  army,  §  600,  p.  577. 

desertion,  §  601,  p.  577. 

court  martial  of  officer,  §  602,  p.  577. 

spies,  ^  603,  p.  577. 

mutiny  or  insubordination,  §  604,  p.  577. 

general  definition,  §  605,  p.  577. 

distinction  between  martial  and  military  law,  §  605,  p.  578. 

MINORS.     See  Habeas  Cokpu.>;  Military  Law;  Parties. 

MISDEMEANORS.     See  Common  Law;  Crimi:;al  L.vw. 

MORTGAGE.     See  Admiralty  ;  Equity. 


I 


INDEX.  045 

JLOTIOK 

to  dismiss  for  want  of  jurisdiction,  §  64,  p.  44. 

:^ATiONAL  BANK.     See  Attaciimkxt. 

NATIONAL  BOUNDAKY. 

an  excln-iively  political  question,  §  54,  p.  39. 

NATUIIALIZATION.     See  chapter  headings  on  page  447. 
NE  EXEAT. 

writ  may  be  aV)olished  by  statute,  §.  68,  p.  5.5. 

See  Equitv,  and  chapter  headings  on  page  502. 

NON-RESIDENTS. 

may  sue  non-residents  in  state  courts,  §  114,  p.  108. 

See  Attachment;  Ciumes;  Pauties;  Torts. 
NOTICE. 

sufficiency  of,  not  collaterally  inquired  into,  §  88,  p.  77. 

of  publication — burden  of  proof  in  impeaching,  §  88,  p.  77. 

of  change  of  venue,  §  12S,  p.  124. 

of  village  ordinance,  what,  §  82,  p.  72. 

See  Attachment;  Pauties;  Service. 
NUISANCE.     See  Equity. 
NUNC  PRO  TUNC.     See  Judgment. 

OBITER  DICTA. 

not  regarded  as  declarations  of  the  laAV,  §  2,  p.  2. 
OBJECTION. 

to  jurisdiction  as  to  subject-matter — wlien  taken,  §  63,  p.  44. 

how  taken,  j  64,  p.  44. 

not  waived  by  delay,  §  565,  pp.  46,  49,  note,  50.  • 
OFFICE. 

courts  mav  take  cognizance  of  a  jicrsonal  contest  fop  a  slate  dfRce,  § 
52,  p."3S. 
OFFICE  B. 

not  protected  against  an  action  for  an  escape  by  a  (lisch;;rge  on  habeas 
corpus  by  a  court  witliout  jurisdi.'tiou,  <j  17,  p.  12. 

justification  of,  in  taking  goods,  i  44,  p.  31. 

misconduct  of — not  cognizable  in  the  courts  of  another  state,  §  115, 
p.  112. 
OllDEIlS. 

made  witliout  jurisdiction — setting  aside,  j  14,  p.  10. 
OWNERSHIP.     See  Equity. 

PARDON.     See  Crimes. 
PARTIES. 

notice  to  essential,  §  82,  p.  G9. 

partnership — service  on  individual  partner,  §  82,  p.  70. 

effect  of  want  of  notice,  ^  82,  p.  71. 

statutor}'  mode  of  service  or  notice  must  be  slrictlv  pursued,  $  82, 

p.  71. 
guardian  ad  litem  in  a  court  of  probate,  j  82,  p.  71. 
cannot  enter  an  appearance  for  minors,  §  82,  p.  71. 
effect  of  not  appointing  guardian  ad  litem,  j  82,  p.  71. 
appearance,  ^  114,  p.  1U9. 
service  or  notice  must  be  personal  unless  otherwise  provided  for  and 

by  summons,  §§  82,  114,  pp.  72,  109. 
non-resident,  ^  82,  p.  72. 
must  be  service  in  equity,  §  82,  p.  72. 


046  INDEX. 

PARTIES— Continued. 

method  of  service,  i  83,  p.  72. 

service  where  substantial  jurisdiction  is  enlarged,  §  S3,  p.  72. 

fraud  or  trickerj'  not  allowed  to  l)riug  partv  within  the  jurisdiction, 
^  84,  p.  73. 

exemption  from  service  when  part}-  comes  voluntarily  into  the  juris- 
diction, ^  84,  p.  73. 

in  court  bound  to  take  notice  of  all  subsequent  proceedings,  unlcij 
there  is  a  discontinuance,  §  85,  p.  73. 

consent  to  personal  jurisdiction,  j  8(3,  p.  74. 

minors  cani.ot  waive  personal  service,  p.  74,  note  (w.) 

non-resident  coming  voluntarily  into  tlie  jurisdiction,  i  87,  p.  76. 

notice  to  non-residents  in  proceedings  iu  rein,  j  88,  p.  77. 

general  rule  as  to  non-residents,  '^  Ss,  p.  78. 

service  on  foreign  corporations,  §  80,  p.  79. 

record  party  gives  jurisdiction,  §  HI,  pp.  80,  82. 

and  he  mus't  claim  the  right  for  himself,  §  91,  p.  81. 

fictitious  co-defendant  gives  no  jurisdiction,  ^  91,  p.  82. 

if  the  state  is  interested,  but  not  a  record  party,  jurisdiction  is  con- 
ferred by  the  record  party,  ■j  91,  p.  82. 

consul  may  sue,  but  is  not  lial)le  to  be  sued,  §  93,  p.  82 

Indians,  v^"94,  p.  82. 

whether  non-resident  plaintiff  may  be  compelled  to  appear  as  a  wit- 
ness, §  95,  p.  83. 

officers  of  tlie  United  States  government  may  be  sued  in  state  courts 
unless.specitically  exempted,  §  96,  p.  83, 

confederate  soldiers,  ^  98,  pp.  84-92. 

non-resident  may  sue  non-resident,  j  114,  p.  108. 

wliere  proceedings  in  7v»t  attach  as  incidental  remedy,  §  117,  p.  114. 

non-resident — wJien  jurisdiction  in  rem  will  be  taken — trespass,  j  117, 
p.  115. 

See  Attaciimkxt  ;  Appearance  ;  Citizexshtp  ;  Seuvice. 
PARTITION. 

jurisdiction  in  does  not  confer  jurisdiction  to  contest  a  will,  §  117,  p. 
113. 

See  CoruTS  of  Pkobate,  and  chapter  headings  on  page  609. 

PARTNERSHIP.      See   Ad.miralty;    Courts    of    Probate;    Equity; 

Pa]{ties;    Real  Estate. 
PENALTIES.     See  EcjriTV. 
PENDENCY  OF  SUIT. 

when  a  suit  is  regarded  as  pending,  §  145,  p.  135. 

PERSONAL  PROPERTY.    See  Equity. 
PLACE  OF  PAY3IENT.     See  Venue. 
PLEA. 

of  want  of  jurisdiction,  §  64,  pp.  44,  45. 
POSSESSION.     See  Equity. 
PRECEDENTS.     See  Com.mox  Law. 
PRESUMPTIONS. 

as  to  jurisdiction  of  superior  and  inferior  courts,  i  30  et  seq.,  p.  26 
ef  seq. 

in  collateral  and  direct  proceedings,  H  32,  33,  pp.  26,  27. 

as  to  superior  court  must  be  overcome  by  proof,  §  34,  p.  27 

how  limited  as  to  persons,  ^  35,  p.  2.'<. 

how  limited  as  to  the  common  law,  §  36,  p.  28. 

include  particular  jurisdictional  facts,  §  37,  p.  28. 

overcome  by  tlie  record,  j  37,  p.  29. 

as  to  reiiularitv  of  proceedinu's,   H  38,  46,  65,  pp.  29.  32  and   note 

where  no  appeal  is  given  conclu-.:ive,  §  39.  p.  29, 


INDEX.  647 

PRESUMPTIONS— Continued. 

as  to  interior  courts,  §  40,  p.  29. 

jurisdictional  facts  must  be  set  out  by  inferior  courts,  §§  41,  42.  p.  30. 

powers  of  inferior  courts  strictlj^  construed,  §  43,  p.  31. 

how  far  implications  may  be  indulged  as  to  inferior  courts,  j  43,  p.  31. 

legislature  may  change,  \  4.5,  p.  32. 

PROBATE  COURT. 

when  cannot  appoint  administrator,  §  Ki,  p.  11. 
See  CoUKTs  of  PRon.vrK;   Pahties. 
PJiOCESS. 

i.ssulng  to  foreign  county,  §  ll.s,  p.  117. 
injunction  of — writ  issued  by  another  court,  j  1,56,  p.  150. 
See  Pabtiks;  Sf;iivicE. 

PROHIBITION.     See  chapter  headings  on  page  502. 
PROMISSORY  NOTE.     See  Ao.MiK.^LTr. 

PROVISIONAL  COURTS. 

jurisdiction  not  ousted  by  the  re-establishing  of  the  regular  courts, 
§  131,  p.  125. 

QUALIFICATION.     See  Judges. 
QUO  WARRANTO. 

ancient  writ,  ^  453,  p.  456. 

nature  of  the  action.  H  4.54.  455,  pp.  456,  457. 

forfeiture  of  office  by  failure  to  qualify,  §  454,  p.  457,  note. 

situation  or  location  of  office,  §  4.54,  p.  457,  note. 

right  of  legislator  to  his  .seat,  §  454,  p.  457,  note. 

prosecution  runs  in  the  name  of  the  people,  §  456,  p.  458. 

annulling  franchise.  «  456,  j).  45S,  note. 

duty  of  attorney-general,  §  456,  p.  45^. 

writ  in  term  time,  j  456,  p.  459. 

leave  to  tile  information  where  term  would  expire,  §  456.  p.  45'.). 

"When  legislature  may  direct  proceedings,  §  456,  p.  459. 

amendatory  act  passed  while  proceedings  are  pending  atfecting  the 

pending  cause.  §  457,  p.  460. 
original  jurisdiction  of  a  supreme  court,  §  45s,  p.  460. 
nature  of  the  proceedings  as  to  franchises,  ^  459,  p.  461. 
how  per.sonal  jurisdiction  is  acqiiired,  §  460,  p.  461. 
cliange  of  venue  of  case  remitted  to  a  certain  county  by  a  supreme 

court,  §  461,  p.  461, 
con.sent  cannot  give  jurisdiction,  §  462,  p.  462. 
wMio  may  be  a  relator,  §  463.  p.  462. 

determining  the  right  to  an  otiice — what  is  involved,  §  464,  p.  463. 
subject-matter  of  ])r()ceedings,  §  465,  p.  46.'J. 

proceedings  cannot  be  substituted  for  imj)cachment,  §  465,  p.  464. 
constitutionality  of  a  law  relating  to  numicipalities  not  tried,  ^  465, 

p.  464. 
city  ordinance  nol  aiiniiUcd.  §  4(i5,  p.  464. 
mtist  he  a  civil  right  in  conli-oviMsy,  §  465,  p.  464. 
♦•auses  of  corporate;  forlciliire  of  I'lanchise,  §  4()5,  p.  4G5. 
short  term  of  office  may  1/ar  action,  §  465,  p.  465. 
what  is  a  usurjiation  of  office,  §  465,  p.  465. 
title  to  post-olli(te  not  tried,  i  465,  p.  465. 
whether  a  town  has  been  legally  creeled,  §  466,  p.  466. 
or  a  school  dislrici ,  §  466,  [).  4(i6. 
right  to  a  military  ollicc  may  be  tried,  j  4(i6.  j).  4GG. 
against  a  school  superinlcndi-nl,  §  46(i,  p.  466. 
against  a  pilot,  §  46(1,  p.  467. 
national  bunk,  ^  466,  p.  467. 
trustees  of  an  incorporated  church,  §  466,  p.  467. 


048  INDEX. 

QUO  WARRANTO— Continued. 

cschcals,  §  4(jfi,  p.  4{;7. 

Iraiicliise  of  a  private  corporation,  §  466,  p.  467. 

modern  writ  extended  beyond  the  ancient  writ,  §  467,  p.  468. 

election  matters,  ^  469.  p.  46^. 

oustiiiu  member  of  city  council,  §  468,  p.  46S. 

fraudulent  organization  of  county,  j  470,  p.  469. 

officers  continue  to  act  pending  proceedings,  §  471,  p.  470. 

SALE.     See  Ec^uity,  and  chapter  lieadings  on  page  609. 

SECRETARY  OP  STATE.     See  MANDAircs,  and  chapter  on  Constitc 

TioNAii  Limitations. 
SERVICE. 

of  summons  in  another  state,  p.  92,  note. 

of  copy  of  judgment  or  bill  in  chancer}',  p.  92,  note. 

when  personal  service  is  necessary,  §  113,  p.  105,  note. 

waiver  of,  §  113,  p.  10."),  uot(;. 

as  to  non-resident,  §  113,  ]).  10,"),  note. 

by  puljlication  must  conform  to  statute,  §  113,  p.  106,  note. 

in  divorce,  j  113,  p.  106,  note. 

between  non-residents,  §  114,  p.  109. 

on  corporation — where  and  liow  made,  §  114,  p.  lOl*. 

personal  service  necessarv — lew  does  not  give  jurisdiction,  §   119. 
p.  116. 

manner  of,  §  97,  p.. ^3. 

See  Pahties;  Phockss. 
SET-OFF.     See  Amoc.nt;  Cori'/rs  op  Probate. 
SETTING  ASIDE. 

orders  made  without  jurisdiction,  ^  14,  p.  10. 
SEVERANCE. 

of  ill-joined  causes  of  action,  p.  9,  note. 

SPEAKER   OF   HOUSE.     See  Maxd.vmcs,  and  chapter  ou   Constitu- 
tional  Limitations. 

SPECIFIC  PE KFORM ANCE. 

of  contract  relating  to  land  in  another  state,  §  116,  p.  112. 
See  AD>riKALTT;  Courts  op  Pkobate;  EquiTZ. 
STARE  DECISIS. 

when  it  protects  jurisdiction,  §  19,  p.  12. 
STATE. 

set-off  may  be  allowed  in  suit  by,  §  91,  p.  82. 

when,  may  be  sued,  §  91,  p.  S-.' 

general  jurisdiction  of  office.     See  Office. 
See  CitiMES. 
STATUTES. 

constllulionalily  of,  ^  6,  ;'..'),  pp.  3,  39. 

mandatory  and  directory,  j  6s,  p.  ,06. 

effect  of  a  repeal  on  juri.sdiction,  §  69,  p.  56. 

enlarging  autliorily — etTc(;t  on  jiending  suits,  f  70.  p.  ."JS. 

giving  power  to  coiniiiou-law  courts  as  to  distributions,  i  71,  p.  od. 

principle  of  strict  cousuuclion,  §  72,  p.  r)9. 

ousting  jurisdiction  of  superior  courts,  ^  73,  p.  61. 

creating  new  courts — effect  in  pending  ciuses,  §  74,  p.  63. 

repeal  of  statute  crcMting  offence  discharges  indictment,  j  Iri,  p.  63. 

may  abolish  ne  exedt  writs,  §  Q'f^,  p.  55. 

whether  retroactive  on  ])ending  proceedings,  ^  83,  p.  73. 

As  to  Statutorv  Jurisdiction,  see  §§  60,  65,  67,  70,  71,  pp.  40, 

52,  55,  58,  r,9. 
See  Attach.vient  ;  Eiiirrv;  Ciu.mes. 


INDEX.  649 

SUIT.     See  Date. 

SUMMARY  PROCEEDINGS. 

scope  of,  j  161,  p.  155. 

autliority  luust  be  strict!}^  pursued,  §  162,  p.  155. 
SUM^MOXS.     See  Pakties  ;  Seuvice. 
SUPPLEMENTARY  PROCEEDINGS. 

nature  of  and  when  allowable,  §  14G,  p.  131. 

SURETYSHIP.     See  Equity. 

TAXATION. 

mnndawus  to  compel  refunding:,  §  -1:94,  p.  493. 

See  M.VNUAMDS,  and  chapter  lieadings  on  page  580. 

TERMS  OF  COURT. 

must  be  held  as  prescribed  by  statute,  §  l.'i2,  p.  126. 

what  is  a  conipliauce,  §  133,  "p.  127. 

l^resuniption  of  regularity,  §  133,  p.  127. 

adjournments — p.csuniplion  ol,  §  133,  p.  127. 

continuation  of  term,  §  133,  p.  127,  note. 

commencement  of  term,  §  133,  p.  127. 

special  teiins,  ^  133,  p.  127. 

effect  of  the  close  of  a  term,  «  r'3,  p.  127. 
See  Couirrs  of  Pkoiiate. 
TITLE. 

inciilental  question  of,  does  not  oust  juiisdiction.  §  79,  p.  G7. 
See  Attach.ment  ;  Equity. 

TORTS. 

committed  out  of  the  slate  by  non-residents,  jj  bl,  115,  pp.  76,  110. 
See  AoMiKAi/rY. 

TRESPASS. 

venue  in,  §  117,  p.  114. 
TRUST  DEEDS.     See  Equity. 
TRUSTS.     See  Admiualty;  Courts  of  Pkobate;  Equity. 

UNITED  STATES  COURTS. 

and  state  courts,  §  G8,  p.  53. 

See  AD.MinAUTY;  Co.mmon  Law. 

VACATION.     See  Teisms  op  Couht. 

VALUE.     Sec  Amount. 

VENUE. 

where  a  county  is  divided,  §  68,  p.  53. 

ei'roiu'ous,  cured  by  consent,  ^  86,  pp.  75,  7G. 

moaning  of  leriu,  §  112,  p.  10.5. 

general  jurisdictiDii  of  slate,  ^  113,  p.  105. 

suits  beiween  non-residents,  §  114,  j).  lOS. 

torts  C()mniitle<l  without  tlie  jurisdiction,  §  115,  p.  110. 

in  rrgard  to  lands,  §  116,  p.  112. 

in  regard  to  counties,  ^  111,  p.  113. 

process  in  another  county,  §  lis,  p.  115. 

jurisdiction  by  levy  on  land, '^  119,  j).  116. 

in  I'cgard  to  boumlarie-;,  ■j  12fi,  p.  1  i6. 

change  of  lioundaiy  by  stream,  ^  120,  p.  116,  note. 

place  of  holding  c(jurt,  ^  121,  p.  117. 

bill  of  review.  «  117,  p.  114. 

trespass,  ^  117,  p.  114. 

bill  of  revivor,  §  117,  p.  114. 


()50  INDEX. 

VENUE— Continued. 

division  of  county  pending  trial,  §  117,  pp.  11.3,  114. 

jud2;e  at  chambers,  power  to  compel  partv  to  appear  in  another  countj^ 

"*  118,  p.  11.^). 
issuance  of  process  to  foreign  county,  §  118,  p.  115. 
place  of  payment,  §  118,  p.  116. 

place  of  personal  service  controls,  §  118,  p.  116,  note, 
as  to  indictment,  §  120,  p.  117. 
quo  icarmntu,  *  127,  p.  123. 

bee  Change  op  Venue;  Counties;    Courts  op  Pkobate; 
Ckimes  ;  and  Special  Topics. 

WAIVER.     See  chapter  on  Constitutional,  Limitations. 

objection  to  substantial  jurisdiction  not  waived  by  delay,  §  65,  pp.  46, 

49,  note,  50. 
of  personal  privilege,  ^  66,  86,  pp.  51,  75. 

See  Venue. 
minor  cmnot  waive  service,  p.  74,  note  [w.) 
by  corporation,  §  89,  p.  SO. 

WILL.     See  Equity. 

jurisdiction  in  petition  for  partition  does  not  confer  jurisdiction  to 
contest  the  will  under  which  partition  is  prayed,  $  117,  p.  113. 

WITNESS, 

whether  non-resident  plaintiff  may  be  compelled  to  appear  to  testify 
in  the  cause,  j  95,  p.  83. 


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